HANDBOUN'D
AT THE
UNIVERSITY OF
TORONTO PRESS
UNIVERSAL CLASSICS
LIBRAPxY
WIPHOTOGRAWRE50N
JAPAN VELLVM, ETCHINGS
HAND PAINTED INDIA-PLATE
REPRODVCTIONSAND
FULL PAGE PORTRAIT5
M.WALTER DUNNE, PUBLISH ft
NEW YORK & LONDON
COPYRIGHT, 1903,
B Y
M. WALTER DUNNE,
PUBLISHER
GENERAL PREFACE
THE LIBRARY OF UNIVERSAL CLASSICS AND
RARE MANUSCRIPTS, twenty volumes are
devoted to the various branches of Govern
ment, Philosophy, Law, Ethics, English and
French Belles Lettres, Hebraic, Ottoman,
and Arabian Literature, and one to a col
lection of 150 reproductions, bound in Eng
lish vellum, of the autographs, papers and
letters of Rulers, Statesmen, Poets, Artists
and Celebrities ranging through three cen
turies, crowned by an illuminated facsimile
of that historic Document, the Magna Carta.
The series in itself is an epitome of the
best in History, Philosophy and Literature.
The great writers of past ages are accessi
ble to readers in general solely through
translations. It was, therefore, necessary that
translations of such rare Classics as are em
bodied in this series should be of the best,
and should possess exactitude in text and
supreme faithfulness in rendering the au
thor's thought. Under the vigilant scholar
ship of the Editoral Council this has been
accomplished with unvarying excellence.
The classification, selection and editing of
the various volumes have been the sub-
(i)
ii THE UNIVERSAL CLASSICS
ject of much earnest thought and consultation on the
part of more than twenty of the best known scholars of
the day.
The Universities of Yale, Washington, Cornell, Chi
cago, Pennsylvania, Columbia, London, Toronto and
Edinburgh are all represented among the contributors,
the writers of special introductions, or upon the consult
ing staff, the latter including the Presidents of five of
the Universities mentioned. Among others who contrib
ute special essays upon given subjects may be mentioned
the late Librarian of the British Museum, Dr. Richard
Garnett, who furnishes the essay introducing "Evelyn's
Diary." From the Librarian of the National Library of
France, L£on Vall6e, conies the fascinating introduction
to the celebrated "Memoirs of the Due de Saint-Simon."
The scholarly minister to Switzerland (late First Assist
ant Secretary of State), Dr. David J. Hill, lent his wide
reading to the brilliant and luminous essay that pre
cedes the "Rights of War and Peace." The resources
of the Congressional Library at Washington, as well as of
foreign libraries, have all been drawn upon in the gigan
tic task of compressing into the somewhat narrow limits
of twenty volumes all that was highest, best, most en
during and useful in the various ramifications of litera
ture at large.
The first section of the Library is devoted entirely to
the manuscript reproductions of the autographs of cele
brated men in all ranks and phases of life, covering a
period of three centuries. They are, in fact, the Ameri
can edition of the reproduction of rare and celebrated
autographs drawn from the British Museum that was
issued in England under the editorship of the Assistant
Keeper of the Manuscripts. They afford an opportunity
to the inquiring reader to study the characters of Rulers,
Statesmen, Writers, and Artists through the medium of
their chirography.
It has long been recognized that character is trace
able through handwriting. So it is interesting to discern
GENERAL PREFACE iii
in the characters traced by Henry VIII the hardened, sen
sual and selfish character of that autocrat and polygamist ;
in the writing of Thomas Wolsey, those crafty traits com
bined ' with perseverance and mock humility which
raised him wellnigh to supremacy in the realm and led
him finally to a downfall more complete than any we
read of in English history; and in that of Charles V, of
Spain, the hard-headed continence of character and su
perb common sense which enabled him at the height of
glory to retire to a monastery while yet there was "day
light in life," as he expressed it, "for the making of his
soul." Apart from the historical interest of these Docu
ments, this study of character as revealed in them will
prove fascinating to thinking minds.
•
The Magna Carta, greatest of all historical char
ters wrung from the various kings of England from
Henry I downward, was granted by King John at the
pressing instance of the Barons and Commons of England
toward the end of his ill-judged and unfortunate reign.
Of this Document, celebrated and historic as it is, but
little is known at large. Although Blackstone and other
prominent lawyers have written upon it, information
about it is hard to obtain. No reproduction of the orig
inal Document has ever been offered to American col
lectors. This facsimile is illuminated in colors with the
shields of many of the Peers who compelled King John
to accede to their demands for civil and religious liberty.
The original charter was signed at a place called Runny-
mede (the Council Meadow) a spot between Windsor and
Staines, on the i5th of June, 1215, about a year before
the death of John. It practically guaranteed to the Com
mons of England all the civil and religious rights they
enjoy to-day. It dealt with testamentary law as well, se
curing to widows all the legal rights which they to-day
possess. It dealt with the rights of accused persons ; with
military service; with feudal tenure; with taxation, and
it limited the heretofore autocratic power of the King to
an extent unknown before in the history of the world
iv THE UNIVERSAL CLASSICS
If we except the Declaration of Independence, it is the
most interesting historical record of all time.
The Second Section of the Library (ten volumes) is
devoted to the presentation of Government, Philosophy,
Law and Ethics. This section embraces such names as
Grotius, Plato, Sir George Cornewall Lewis, Adam Smith,
Hamilton, Madison, Jay, Walter Bagehot, Spinoza, Schop
enhauer, Machiavelli, as well as those builders of Ideal
Governments, More, Bacon, Campanella and Rousseau.
Of all benefactors in Literature of the human race,
Grotius may perhaps rank as first among his equals.
Centuries have borne witness to the justness of his pre
mises and the wisdom of his conclusions. The princi
ples of national law laid down by him are to-day accepted
as the axioms of the Science. Among the nations, perhaps
the United States is most deeply interested in the right
administration of the principles affirmed by Grotius in
his gigantic work on the "Rights of War and Peace,"
and it was therefore most fitting, when the recent peace
conference at The Hague completed the great structure of
international comity, the foundations of which were laid by
Grotius in 1625, that a silver wreath was laid by the
representative of the United States upon the grave of
the man to whom the Conference owed its initial impulse,
although at a distance in time of nearly three centuries.
When the Publisher determined, under the advice of his
Editorial Council, to publish Grotius, he found that only
two volumes of the first edition were available in the
Library of Congress. At much expense and trouble, he
instituted a search in Europe and finally obtained the
missing volume, which he presented to the Congressional
Library, where it now is.
Sir George Cornewall Lewis's "Government of Depend
encies" is characterized by the accuracy of its information
It is a reliable text book for the guidance of any nation
in the treatment of its dependencies and colonies. It is
a Classic that will survive as long as colonization re
mains to be done, and it is remarkable that although it
GENERAL PREFACE v
was published for the first time sixty years ago, the illus
trations afforded by the last two generations support the
justice of its principles and the exactness of its deduc
tions.
Adam Smith's ''Essay on Colonies " presents an intro
ductory view of the principles governing colonial policy.
It is a fitting work to go hand in hand with the greater
one of Sir George Cornewall Lewis. It is of practical
use to American Statesmen, since the United States
seems at present to be entering upon a world-wide colo
nial policy. Its practical wisdom, which has made it a
Classic for all times, finds a special applicability in the con
ditions of today, for Adam Smith was a theorist in the
best sense of the word, that is to say, he was a man
whose breadth of view, instead of unfitting him for prac
tical details, enabled him to deduce from the lessons of
history and experience the right solutions for the prob
lems of Colonial policy.
Plato's "Republic" and "Statesman" must be regarded
to-day not merely as historical records of a by-gone
philosophy, but as living, teaching dissertations upon
theories which cannot fail to awaken in studious minds
the highest ideals of life and government. Modern
problems stated in the light of Plato's philosophy, as it
is expressed in these books, will find readier solutions
when examined in the light of its principles. No student
of sociology, of politics, national and municipal, or of
government in all its many-sided aspects, can afford to
be without a knowledge of these immortal discourses.
Goldwin Smith has declared that of all expositions of
constitutional Government, "The Federalist" ranks the
highest. When Hamilton, Madison, and Jay first conceived
the idea of printing in the common tongue their ideas upon
the principles of free government, they unwittingly laid the
foundations of the best commentary on the principles
of popular government ever written. Political science
owes to them the most important contribution to its lit
erature made since its birth. The Essays are equally ad-
vi THE UNIVERSAL CLASSICS
mirable for sagacity, simplicity, and patriotism, and while
The Federalist will never be read for pleasure, it con
tains a mine of wisdom for the student and the constitu
tional lawyer, and as a text book of political science is
without a parallel.
When Bagehot issued his work on the English Con
stitution, it was hailed by the critics as the most won
derful and philosophical dissertation on the subject in
any language or from any pen. John Stuart Mill used
to say that of all great subjects much remained to be
written, and that especially was this true of the English
Constitution. Bagehot's work, although affording the
conclusion that monarchy in England exists as a logical
necessity, is so unbiased in its premises, so logical and
clear in its deductions, that this manifest fairness, al
though leading one to conclusions distasteful to a repub
lican mind, must endear him to his readers. Dealing
with a subject somewhat dry in its details, he invests
inanimate objects with so much light that they become
realities. In the highest sense he combines popularity
and scholarship.
Spinoza's philosophy may be traced both to the in
fluence of Bacon, his predecessor, and to Descartes, his
contemporary. Its combination of positivism with the
enthusiasm of piety characterizes his philosophy as unique
in itself, for while treating man from a purely mechan
ical standpoint, it asserts that the mechanism itself is en
tirely divine. Spinoza was a voluntary martyr in the
cause of Free Thought. He was at the same time both
Pantheist and Monist, yet sincere in his devotion to na
ture and the God of nature. His religion naturally made
him a Monist, while his philosophy led him to express
the Pantheism that the lover of God in Nature cannot
avoid. While he renounced his Judaism and entered the
ranks of the Christian philosophers, he never received
baptism. He may be ranked among the greatest of the
German mystics, whose work had such profound influence
upon the dogmatic Christianity of a later day. The epi-
GENERAL PREFACE vn
thet conferred on him, namely, " God-intoxicated,"
summarizes his whole attitude and the character of his
philosophy better than any lengthy dissertation.
When Schopenhauer began to write, he declared him
self a true disciple of Kant, but he modifies and adapts
Kant's " Critique of Pure Reason" to such an extent
that he reaches the attitude of opposition. This atti
tude he manifests throughout all his writings. He
is truly an Apostle of Protest, but in spite of his
positivist contradictions and his materialistic pantheism,
he opens up a mine of suggestions to the literary and
philosophical student. In spite of the apparent tragedy
due to the conflict within him, we cannot help gather
ing from Schopenhauer an immensity of what is true,
what is good and what is excellent. One thing espe
cially noticeable about his writings is that while
German philosophers are often ponderous and in fact
nebulous, Schopenhauer is always clear, original, and
readable.
To Machiavelli belongs by acclaim the honor of hav
ing written the ideal biography of a State. His clear,
straightforward, concise statement of conditions and char
acters as he saw then is a model for all writers of rec
ord. He was the first great Italian historian, and no
man has ever been more ardent in his patriotism or a
more earnest supporter of government for and by the peo
ple. The greatest tribute to his inflexible honesty of
character is the fact that while no man had greater op
portunities to enrich himself at the cost of the State, he
died leaving his family in the greatest poverty. His
varied political experience, and his assiduous study of
classic writers, gave him the ability as well as the desire
to write the history of his native State. Time has pro
nounced this History to be a classic worthy of preserva
tion, and the perspective of time has also enabled us to
form a juster and greater estimate of its author.
The Ideal Republics and Empires that have been
constructed from time to time by political dreamers have
viii THE UNIVERSAL CLASSICS
all the attractiveness of works like Pilgrim's Progress
or Gulliver's Travels, combined with a philosophy and
political insight that give them a double claim to be
considered Classics. Modern progress may be more deeply
indebted than we can estimate to the fantasies and
airy castles of men like Rousseau, More, and Campanella.
The four Ideal Republics or Governments described in
this volume are perhaps the most famous of all, since
they rank not only as great creations of the imagination
but as literature of the highest class; and their writers
have a further claim upon posterity from the fact that
they helped to make history.
The Third and concluding Section of the Library deals
with that tremendous range of world- wide literature
which we call, for want of a better name, Belles Lettres.
Goethe contributes his brilliant and sagacious observa
tions on men and things as he communicated them to
Eckerman. Landor, of whom Swinburne has said that
Milton alone stands higher, both in prose and verse, fur
nishes us with his Classical Conversations. Montesquieu
and Goldsmith are drawn on for their Persian and Chi
nese Letters. Lord Chesterfield gives us the irony and
hard-headed criticism combined with worldly common
sense contained in the Letters to His Son, and the vari
ous names best known in French and English Belles
Lettres yield what is greatest in them. Ottoman Literature,
comprising Arabian, Persian, and Hebraic Poems, affords
the reader an insight into the romantic and dramatic
character of the Oriental. The Dabistan, possibly the
most extraordinary book ever written in the East, finds
itself at home in this section, while the Literature of the
Hebrews is ideally represented in that most wonderful of
all monuments of human wisdom, and perhaps folly, the
" Talmud," together with the basis of modern metaphysics,
the "Kabbala."
The Sufistic Quatrains of Omar Khayyam are here
for the first time presented complete in a collection of
this order. The various editions of Fitzgerald are re-
GENERAL PREFACE ix
printed, collated, and to them is added the valuable
Heron-Allen analysis of Fitzgerald's sources of inspira
tion. The very rare Whinfield version is found here
complete; and for the first time in English appears M.
Nicolas' French transcription of the Teheran Manuscript.
It is safe to say that any lover of Omar wishing to add
to his collection the versions here quoted would be com
pelled to disburse more than one hundred times the
amount this book will cost him.
While the Library of Universal Classics does not claim
to be the final condensation of the treasure houses of
human philosophy and lore, whether practical or ideal,
it does most emphatically assert its right to be called
the most useful, most attractive, and most representative
selection, within the limits assigned to it, of those world-
masterpieces of literature which men, for lack of a more
luminous name, call Classics.
HUGO GROTIUS
From an Original Painting.
THE RIGHTS OF
WAR AND PEACE
LAW OF NATURE
AND OF NATIONS
TRANSLATED FROM THE ORIGINAL LATIN OF
GROTIUS
WITH NOTES AND ILLUSTRATIONS FROM
POLITICAL AND LEGAL WRITERS
A. C. CAMPBELL A.M.
WITH AN INTRODUCTION BY
DAVID J. HILL,
Assistant Secretary of State of the United States
ri.WAI TFR DUNNE, PUBLISHER
NEW YORK & LONDON
COPYRIGHT, 1901,
BY
M. WALTER DUNNt
PUBLISHER
ILLUSTRATIONS
HUGO GROTIUS Frontispiece
From an original painting.
WAR 109
By Gari Melchers,
From a panel painting in Library of Congress.
PEACE 213
By Gari Melchers,
From a panel painting in Libraiy of Congress.
WAR AND PEACE 307
Frontispiece to a rare edition of Grotius.
(xi)
CONTENTS
BOOK /.
CHAPTER PAGE
Introduction i
I. On War and Right 17
II. Inquiry into the Lawfulness of War 31
III. The Division of War into Public and Private, and the
Nature of Sovereign Power 55
BOOK //.
I. Defense of Person and Property 73
II. The General Rights of Things 85
III. On the Original Acquisition of Things, and the Right
of Property in Seas and Rivers 103
IV. Title to Desert Lands by Occupancy, Possession, and
Prescription 109
IX. In What Cases Jurisdiction and Property Cease . . .117
X. The Obligation Arising from Property 123
XI. On Promises 131
XII. On Contracts 144
XIII. On Oaths . 160
XV. On Treaties and on Engagements Made by Delegates
Exceeding Their Powers 166
XVI. The Interpretation of Treaties 176
XVII. On Damages Occasioned by Injury, and the Obligation
to Repair Them 195
XVIII. On the Rights of Embassies 202
XIX. On the Right of Burial 213
XX. On Punishments 220
XXI. On the Communication of Punishment 256
XXII. On the Unjust Causes of War 267
XXIII. On Doubtful Causes 274
XXIV. Precautions against Rashly Engaging in War, Even
upon Just Grounds 280
BOOK III.
1. What Is Lawful in War 290
II. In What Manner the Law of Nations Renders the Prop
erty of Subjects Answerable for the Debts of
Sovereigns. The Nature of Reprisals .... 307
III. On Just or Solemn War According to the Law of
Nations on Declarations of War 314
(xiii)
XIV
THE RIGHTS OF WAR AND . EACE
CHAPTER PAG*
IV. On the Right of Killing an Enemy in Lawful War and
Committing Other Acts of Hostility .... 323
V. On the Right to Lay Waste an Enemy's Country and
Carry Off His Effects 332
VI. On the Acquisition of Territory and Property by Right
of Conquest 334
VII. On the Right over Prisoners of War 345
VIII. On Empire over the Conquered 348
IX. Of the Right of Postliminium 351
XI. The Right of Killing Enemies, in Just War, to be
Tempered with Moderation and Humanity . .359
XII. On Moderation in Despoiling an Enemy's Country . . 365
XIII. On Moderation in Making Captures in War .... 369
XV. On Moderation in Acquiring Dominion 372
XVI. On Moderation with Respect to Things Excluded from
the Right of Postliminium by the Law of Nations . 375
XVII. Respecting Those Who Are Neutral in War . . . .377
XIX. On Good Faith between Enemies 379
XX. On the Public Faith by Which War Is Concluded;
Comprising Treaties of Peace, and the Nature of
Arbitration, Surrender, Hostages, Pledges . . 385
XXI. On Faith During the Continuance of War, on Truces,
Safe-Conducts, and the Redemption of Prisoners . 403
XXII. On the Faith of Those Invested with Subordinate Powers
in War 411
XXIV. On Tacit Faith 415
XXV. Conclusion 417
INDEX 419
INTRODUCTION
THE WORK AND INFLUENCE OF HUGO GROTIUS.
THE claims of the great work of Grotius, ^De Jure
Belli ac Pads, w to be included in a list of Universal
Classics, do not rest upon the felicity of style
usually expected in a classic composition. His work is
marked by frequent rhetorical deformities, tedious and
involved forms of reasoning, and perplexing obscurities
of phraseology which prevent its acceptance as an exam
ple of elegant writing. Notwithstanding these external
defects, it is, nevertheless, one of the few notable works
of genius which, among the labors of centuries, stand
forth as illustrations of human progress and constitute
the precious heritage of the human race.
If it is not literature in the technical sense, the mas
terpiece of Grotius is something higher and nobler, — a
triumph of intelligence over irrational impulses and bar
barous propensities. Its publication marks an era in the
history of nations, for out of the chaos of lawless and
unreasoning strife it created a system of illuminating
principles to light the way of sovereigns and peoples in
the paths of peace and general concord.
I. THE REIGN OF WAR.
The idea of peaceful equity among nations, now ac
cepted as a human ideal, though still far from realiza
tion, was for ages a difficult, if not an impossible,
conception. All experience spoke against it, for war
was the most familiar phenomenon of history.
Among the Greek city-states, a few temporary leagues
and federations were attempted, but so feeble were the
bonds of peace, so explosive were the passions which led
to war, that even among the highly civilized Hellenic
peoples, community of race, language, and religion was
powerless to create a Greek nation. It was reserved for
i (i)
2 THE RIGHTS OF WAR AND PEACE
the military genius of Alexander the Great, at last, by
irresistible conquest, to bring the Greek Empire into
being, to be destroyed in turn by superior force.
The Roman Empire almost achieved the complete
political unity of Europe, and bound parts of three
continents under one rule, but the corruption of the
military power which held it together led to its inevita
ble dismemberment.
After the conflicts of the barbaric kingdoms which
followed the dissolution of the Western Empire were
ended by the predominance of the Prankish monarchy,
the world believed that the Pax Romana was to be re
stored in Europe by the hand of Charles the Great; but
the disruptive forces were destined to prevail once more,
and the Holy Roman Empire never succeeded in reviv
ing the power of ancient Rome. And thus the dream
of a universal monarchy, of a central authority able to
preside over kings and princes, adjusting their difficul
ties, and preserving the peace between them, was at
last proved futile.
In each of the great national monarchies that had al
ready risen or were still rising on the ruins of imperial
dominion, particularly in France, England, Holland, and
the States of Germany, a continuous internal conflict
over questions of religion complicated the bitterness and
destructiveness of foreign wars until Europe was reor
ganized by the Peace of Westphalia, in 1648.
It was in the midst of these wars that Grotius was
born. He saw his own country rising from a baptism of
blood and all Europe rent and torn by the awful strug
gle of the Thirty Years' War, in the midst of which his
great work was written and to whose conclusion it served
as a guide and inspiration. The Empire, dismembered,
had been reduced to almost complete impotence, the
Church had been disrupted, and no international author
ity was anywhere visible. Amid the general wreck of
institutions Grotius sought for light and guidance in great
£>rinciples. Looking about him at the general havoc which
war had made, the nations hostile, the faith of ages shat
tered, the passions of men destroying the commonwealths
which nourished them, he saw that Europe possessed but
one common bond, one vestige of its former unity, — the
human mind. To this he made appeal and upon its
deepest convictions he sought to plant the Law of
Nations.
INTRODUCTION 3
II. THE PREDECESSORS OF GROTIUS.
It is historically accurate to say, that, until formulated
by Grotius, Europe possessed no system of international
law. Others had preceded him in touching upon certain
aspects of the rights and duties of nations, but none had
produced a system comparable to his.
The earliest attempt to formulate recognized interna
tional customs was the formation of the early maritime
codes, rendered necessary by the expansion of mediaeval
commerce from the end of the eleventh to the end of the
sixteenth century, such as the ^Jugemens d' OUron*
adopted by the merchants of France, England, and Spain,
and reissued under other names for the merchants of
The Netherlands and the Baltic. « The Consolato del
Mare,'* a more elaborate compilation, was made, appa
rently at Barcelona, about the middle of the fourteenth
century, and accepted generally by the traders of the
chief maritime powers. It was in the cradle of com
merce, therefore, that international law awoke to con
sciousness.
As the Church was often intrusted with the task of
pacification, it is but natural to look among her repre
sentatives for the earliest writers on the laws of inter
national relations. It is, in fact, among the theological
moralists that we find the first students of this subject.
As early as 1564, a Spanish theologian, Vasquez, con
ceived of a group of free states with reciprocal rights
regulated by jus naturale et gentium, without regard to
a world-power, either imperial or ecclesiastical. In 1612,
Saurez pointed out that a kind of customary law had arisen
from the usages of nations, and distinctly described a so
ciety of interdependent states bound by fundamental
principles of justice.
At the close of the fifteenth and the beginning of the
sixteenth centuries, a series of circumstances arose ne
cessitating the extension of jurisprudence beyond its an
cient boundaries, and thus tending to produce a group
of international jurists. Among the juristic writers of
this time are Balthazar Ayala, a Spanish jurisconsult,
who died in 1584, having written in a historico-iudicial
spirit on the subject of war in his *De Jure et Officiis
Belli*; Conrad Brunus, a German jurist, who wrote of
the rights and duties of ambassadors in his ^De Lega-
tionibus* published in 1548; and pre-eminent above all,
4 THE RIGHTS OF WAR AND PEACE
Albericus Gentilis, an Italian professor of jurisprudence
and lecturer at Oxford, a writer of force and originality,
who published his ^De Legationibus* in 1583 and his
«De Jure Belli* in 1589.
III. THE LIFE AND PERSONALITY OF GROTIUS.
HUGO GROTIUS, to use the Latin form of his name
by which he is best known, or Hugo de Groot as he is
called in Holland, descended from a race of scholars and
magistrates, was born at Delft, on April roth, 1583. His
family history has been related with much detail by De
Burigny, in his (< Vie de Grotius ,* published in French at
Amsterdam in 1754; and by Vorsterman van Oyen, in his
^Hugo de Groot en Zijn Gesclacht* a complete genealogy in
Dutch, published at Amsterdam in 1883, which gives the
descendants of Grotius down to the present generation.
His origin is traced from a French gentleman, Jean Cor
nets, who took up his residence in The Netherlands in 1402.
His descendant, Cornelius Cornets, married the daughter
of a burgomaster of Delft on condition that the future
children of this marriage should bear the name of their
mother's family, in order to perpetuate the distinction
which it had achieved. The maternal name imposed by
Cornelius Cornets's Dutch father-in-law, Dirk van Kraay-
enburg de Groot, was de Groot, meaning the Great, and
is said to have been bestowed for signal services rendered
to his country by the first who had borne it four hundred
years before. From this marriage sprung a Hugo de
Groot, distinguished for his learning in Greek, Latin, and
Hebrew and five times burgomaster of his native city.
His eldest son, Cornelius, was a noted linguist and mathe
matician who studied law in France and received high
office in his own country, afterward becoming a pro
fessor of law and many times rector of the University of
Leyden. Another son, John de Groot, the father of
Hugo Grotius, studied there under the famous Lipsius>
who speaks of him with the highest commendation.
Four times burgomaster of Delft, John de Groot became
curator of the University of Leyden, a position which
he filled with great dignity and honor.
In his earliest years the young Hugo gave evidence of
marked and varied ability. At eight he wrote Latin
verses which betrayed poetic talent ; at twelve he entered
the University where he became a pupil of that prince
INTRODUCTION 5
of scholars, Joseph Scaliger, who directed his studies;
and at fifteen he defended (< with the greatest applause w
Latin theses in philosophy and jurisprudence. His fame
as a prodigy of diversified learning spread far and wide,
and great scholars declared they had never seen his equal.
Grotius had won celebrity even in foreign lands when,
in 1600, at the age of seventeen, he was admitted to the
bar. The youthful prodigy had already accompanied the
Grand Pensionary, John of Oldenbarneveld on a special
embassy to France, where he was presented to Henry
IV., who bestowed upon him his portrait together with a
gold chain, and graciously called him (< The Miracle of
Holland. w At Orleans he was made a Doctor of Laws.
Married in 1609 to Marie van Reigersberg, whose
devotion was worthy of his deep affection, and loaded
with public honors, having been named the official his
torian of the United Provinces and the advocate-general
of two provinces, Holland and Zeeland, Grotius set his
hand to a work entitled ^Mare Librum^ in which he
defended the freedom of the sea and the maritime rights
of his country against the arrogant pretensions of the
Portuguese in suppressing the commerce of other nations
in Eastern waters, — a treatise destined to become still
more celebrated in the history of international law by
Selden's reply, * Mare Clausum* written in 1635. Next,
turning his attention to the history of The Netherlands,
he devoted himself for a time to his (< Annals of the War
of Independence."
In 1613, Grotius added to his laurels as poet, jurist,
and historian by entering the field of politics, and he was
appointed Pensionary of Rotterdam upon the condition
that he should continue in office during his own pleasure.
It was during a visit to England upon a diplomatic mis
sion in this same year that he met the great scholar
Isaac Casaubon, who said in a letter to Daniel Heinsius:
<( I cannot say how happy I esteem myself in having seen
so much of one so truly great as Grotius. A wonderful
man ! This I knew him to be before I had seen him ; but
the rare excellence of that divine genius no one can
sufficiently feel who does not see his face and hear him
speak. Probity is stamped on all his features."
Closely related by personal friendship as well as by
his official duties to the Grand Pensionary, John of Olden
barneveld, Grotius was destined to share with that unfortu
nate patriot the proscription and punishment which
6 THE RIGHTS OF WAR AND PEACE
Maurice of Orange visited upon the two confederates in
the defense of religious tolerance. Risking all as the
apostles of peace, they were soon condemned to be its
martyrs. Oldenbarneveld, having incurred the bitter
hatred of the Stadtholder, was condemned to death by
decapitation on May i2th, 1619. Grotius, less offensive
to Maurice on account of his youth and his gracious per
sonality, was sentenced six days later to perpetual
imprisonment. On the 6th of June, 1619, he was incar
cerated in the fortress of Loevestein.
Rigorously treated at first, his docility and resignation
soon won the respect and affection of his keepers. Writ
ing materials and books were in time accorded him, and
finally, on condition that she would continue to share his
captivity, he was granted the presence of his wife. The
studious prisoner and his devoted companion completely
disarmed all suspicion of an intention to escape, and the
ponderous chest in which books came and went con
tinued to bring periodic consolation to the mind of the
busy scholar. A treatise on the truth of the Christian
religion, a catechism for the use of his children, a digest
of Dutch law, and other compositions served to occupy
and alleviate the weary months of confinement, until one
day when the time seemed opportune Madame Grotius
secretly inclosed her husband in the great chest and it
was borne away by two soldiers. Descending the stone
steps of the prison the bearers remarked that the trunk
was heavy enough to contain an Arminian, but Madame
Grotius's jest on the heaviness of Arminian books smoothed
over the suspicion, if one was really entertained, and the
great jurist was sent in the chest safe to Gorcum,
attended by a faithful domestic, where in the house of a
friend the prisoner emerged without injury and in the
guise of a stone mason hastened to Antwerp. From
Antwerp he took refuge in France, where he arrived in
April, 1621, and was joined by his faithful wife at Paris
in the following October.
The bitterness of exile was now to be added to the
miseries of imprisonment, for Grotius was not only ex
cluded from The Netherlands, but in extreme poverty.
I His letters reveal his anguish of spirit at this period,
but a generous Frenchman, Henri de Meme, placed his
country house at Balagni at his disposition, and there,
I supported by a small pension, which Louis XIII had
graciously accorded him, though irregularly and tardily
INTRODUCTION 7
paid, Grotius commenced his great work, <(ZV Jure Belli
ac Pacts ^ in the summer of 1623.
Much speculation has been indulged in regarding the
causes which led to the composition of this masterpiece,
but a recent discovery has rendered all this superfluous,
as well as the ascription of special merit to the Coun
selor Peyresc for suggesting the idea of the work. It
is, indeed, to the pacific genius of Grotius more than to
all other causes that the world owes the origin of his
great work; for it sprang from his dominant thought,
ever brooding on the horrors of war and the ways of
peace, during more than twenty years, and never wholly
satisfied till its full expression was completed.
In the winter of 1604, there had sprung out of his
legal practice the idea of a treatise entitled *De Jure
Praedae* fully written out, but never printed by its
author. The manuscript remained unknown by all his
biographers until it was brought to light and printed
under the auspices of Professor Fruin at The Hague in
1868. This interesting document proves that not only
the general conception but the entire plan and even the
arrangement of the ^De Jure Belli ac Pads >J were in the
mind of Grotius when he was only twenty-one years of
age. The difference between the earlier work and the
later is chiefly one of detail and amplification, the differ
ence which twenty years of reading, experience, medita
tion and maturity of faculty would inevitably create.
The curious may find in his letters the almost daily
chronicle of his progress with his book to the time of
its publication after excessive labors lasting more than
a year. In March, 1625, the printing of the first edi
tion, which had occupied four months, was completed
and copies were sent to the fair at Frankfort. His
honorarium as author consisted of two hundred copies,
many of which he presented to his friends. From the
sale of the remainder at a crown each, he was not able
to reimburse his outlay. In the following August he
wrote to his father and brother that if he had their ap
probation and that of a few friends, he would have no
cause for complaint but would be satisfied. Louis XIII,
to whom the work was dedicated, accepted the homage
of the author and a handsomely bound copy, but failed
to exercise the grace customary with monarchs by ac
cording a gratification. At Rome, the treatise was pro
scribed in the index in 1627. Almost penniless and
8 THE RIGHTS OF WAR AND PEACE
suffering from his protracted toil, Grotius seemed destined
to neglect and oblivion, yet from his exile he wrote to
his brother: <( It is not necessary to ask anything for
me. If my country can do without me, I can do with
out her. The world is large enough. . . .*
Invited to enter the service of France by Richelieu,
Grotius would not accept the conditions which the Car
dinal wished to impose, — such at least is the inevitable
inference from his letters. His pension was not paid
and his circumstances became so serious that one of his
children had but a single coat. At length, pushed to the
utmost extremity of want and instigated by his energetic
wife, Grotius resolved to return to Holland. Driven from
Rotterdam to Amsterdam, where he hoped to settle down
as a lawyer, the States General twice ordered his arrest
and named a price for his delivery to the authorities.
The new Stadtholder, Frederick Henry, who, before suc
ceeding his brother Maurice, had written kindly to Grotius
after his escape from imprisonment, now approved his
proscription. Abandoned by his prince as well as by his
countrymen, Grotius once more turned his face toward
exile and set out for Hamburg.
IV. THE WORK OF GROTIUS.
It may be of interest at this point in the career of
Grotius to describe briefly the character of the great work
which was soon to win for him a new celebrity, and ma
terially change his prospects in life.
The inspiration of his ^De Jure Belli ac Pads* was the
love of peace, yet he was far from being one of those
visionaries who totally condemn the use of armed force
and proscribe all war as wrong and unnecessary. On the
contrary, he seeks to discover when, how, and by whom
war may be justly conducted.
His plan of treatment is as follows: —
In the First Book, he considers whether any war is
just, which leads to the distinction between public and
private war, and this in turn to a discussion of the nature
and embodiment of sovereignty.
In the Second Book, the causes from which wars arise,
the nature of property and personal rights which furnish
their occasions, the obligations that pertain to ownership,
the rule of royal succession, the rights secured by com-
INTRODUCTION 9
pacts, the force and interpretation of treaties, and kin
dred subjects are examined.
In the Third Book, the question is asked, "What is
lawful war ? w which prepares for the consideration of
military conventions and the methods by which peace is
to be secured.
From the authority of the Empire and the Church, no
longer effectual as an international agency, Grotius appeals
to Humanity as furnishing the true law of nations. Be
ginning with the idea that there is a kinship among men
established by nature, he sees in this bond a community
of rights. The society of nations, including as it does
the whole human race, needs the recognition of rights
as much as mere local communities. As nations are but
larger aggregations of individuals, each with its own cor
porate coherence, the accidents of geographic boundary
do not obliterate that human demand for justice which
springs from the nature of man as a moral being. There
is, therefore, as a fundamental bond of human societies,
a Natural Law, which, when properly apprehended, is
perceived to be the expression and dictate of right rea
son. It is thus upon the nature of man as a rational
intelligence that Grotius founds his system of universal
law.
As this law of human nature is universally binding
wherever men exist, it cannot be set aside by the mere
circumstances of time and place, whence it results that
there is a law of war as well as a law of peace. As this
law applies to the commencement of armed conflicts, war
is never to be undertaken except to assert rights, and
when undertaken is never to be carried on except within
the limits of rights. It is true that in the conflict of
arms laws must be silent, but only CIVIL laws, which
govern in times of peace. Those laws which are PERPET
UAL, which spring from the nature of man as man, and
not from his particular civil relations, continue even dur
ing strife and constitute the laws of war. To deny these,
or to disobey them, implies a repudiation of human na
ture itself and of the divine authority which has invested
it with rights and obligations. To disavow the impera
tive character of these perpetual laws, is to revert to
barbarism.
It is necessary, however to distinguish between Nat
ural Law, that principle of justice which springs from
io THE RIGHTS OF WAR AND PEACE
man's rational nature, and Conventional Law, which
results from his agreements and compacts. Natural Law
remains ever the same, but institutions change. While
the study of abstract justice, apart from all that has its
origin in the will or consent of men, would enable us
to create a complete system of jurisprudence, there is
another source which must not be neglected, since men
have established the sanctity of certain rules of conduct
by solemn convention.
The Law of Nations does not consist, therefore, of a
mere body of deductions derived from general principles
of justice, for there is also a body of doctrine based upon
CONSENT; and it is this system of voluntarily recognized
obligations which distinguishes international jurisprudence
from mere ethical speculation or moral theory. There
are CUSTOMS of nations as well as a universally accepted
law of nature, and it is in this growth of practically
recognized rules of procedure that we trace the evolu
tion of law international — jus inter gentes — as a body of
positive jurisprudence.
It is evident that the mind of Grotius is continually
struggling to establish a science upon this positive basis,
and it is this which gives a distinctive character to his
effort. The great writers of all ages are cited with a
superfluous lavishness, not so much to support his claims
by an aggregation of individual opinions — still less to
display his erudition, as his critics have sometimes com
plained- — as to give a historic catholicity to his doc
trine by showing that the laws he is endeavoring to
formulate have, in fact, been accepted in all times and
by all men. For this purpose also, he makes abun
dant use of the great authorities on Roman Law,
whose doctrines and formulas were certain to carry con
viction to the minds of those whom he desired to con
vince.
It is needless, perhaps, to point out that the work of
Grotius is not and could not be a work of permanent
authority as a digest of international law. His own wise
appreciation of the positive and historical element — the
authority derived from custom — should exempt him
from the pretense of absolute finality. It is the Book of
Genesis only that he has given us, but it is his inde
feasible distinction to have recorded the creation of order
out of chaos in the great sphere of international rela
tionship, justly entitling him to the honor accorded to
INTRODUCTION n
him by the spontaneous consent of future times as the
Father of International Jurisprudence.
It is not difficult after more than three centuries of
thought and experience to point out the defects in his
doctrine. If he justifies slavery, it is not without inge
nuity; for, he argues, if a man may sell his labor, why
not his liberty ? and if the conqueror may impose his
will upon the property of the vanquished, why not also
upon his person ? If he identifies sovereignty with
supreme power without any adequate conception of its
ethical basis, he is at least as advanced in his thinking
as the conceptions of his time, which had not yet grasped
the idea of the state as a moral organism. If he has no
adequate notion of neutrality, believing it to be the duty
of a nation to enlist its energies for what it deems the
right side, rather than to disavow all responsibility for
actions foreign to its own interests, he is at least sup
ported in this by the opinion of the multitude even at
the present time; and even among jurists the modern
conception of neutrality is hardly a century old. If the
new schools of jurisprudence make light of Natural Law
as a foundation of public and private rights, it is not
certain that Grotius may not yet be vindicated as repre
senting a doctrine at least as clear as any other which
has been substituted for it. But, finally, to all these
criticisms it may be answered, that no great thinker can
be justly estimated except in relation to his predecessors
and contemporaries. Measured by these, Grotius stands
alone among the jurists of his century for originality of
thought and power of exposition.
V. THE INFLUENCE OF GROTIUS'S WORK.
It was during his sojourn in Hamburg in 1633, eight
years after the publication of his ^De Jure, w and while he
was still suffering from painful pecuniary embarrassment,
that Europe suddenly awoke to a sense of his impor
tance; and, almost at one time, Poland, Denmark, Spain,
England, and Sweden all extended friendly invitations
urging him to enter into their public service. His fame
as a jurist had become international and, rudely repelled
by his native Holland, he became the center of Euro
pean interest. Gustavus Adolphus had placed the work
of Grotius along side his Bible under his soldier's pillow,
as he prosecuted his campaigns in the Thirty Years' War.
The first edition of that work, written in Latin, the
\
12 THE RIGHTS OF WAR AND PEACE
cosmopolitan language of learned Europe, had been
quickly exhausted and widely scattered. Another had
soon been called for at Paris, but the death of Buon, the
publisher, created obstacles to its appearance. A second
edition had appeared at Frankfort in 1626, another at
Amsterdam in 1631, and still another with notes by the
author in 1632. The book had aroused the thought of
kings as well as of scholars, and in the circles of high
influence everywhere in Europe the name of Grotius had
become well known. His book had excited the most
opposite sentiments and awakened the most contradictory
judgments, but among lawyers and statesmen its recep
tion was from the first generally marked by admiration.
In spite of exile, poverty, and misfortune, Grotius had
become a European celebrity and was about to enter into
the reward of his labors. He had created a code for
war and a programme of peace, and henceforth no
statesman could afford to neglect him.
Gustavus Adolphus, the king of Sweden, before his
death on the battlefield of Liitzen, had commended Gro
tius to his great Chancellor, Oxenstiern. By the death
of Gustavus the Chancellor had, in 1633, recently come
into the regency of the kingdom at a critical moment
when a retreat from the bitter contest with the Empire
seemed to be foredoomed unless prevented by the sup
port and friendship of France. Recalling the commen
dation of the late king, Oxenstiern sought and found
in Grotius an. ambassador of Sweden to negotiate a new
Franco- Swedish alliance. Accepting this appointment in
1634, Grotius arrived at Paris on his diplomatic mission
on March 2d, 1635.
Richelieu, having failed to draw the great jurist into
the orbit of his influence as a satellite, resented his ap
pearance in a character so influential and honorable as
that of ambassador of Sweden, and Grotius made little
progress in his negotiation. Preoccupied with literature,
he took more interest in the composition of a sacred
tragedy on <( The Flight into Egypt )} than in reminding
France of the existing treaty of Heilbronn or consolidat
ing the new Franco-Swedish alliance. Where Grotius the
theorist failed, Oxenstiern, the practical statesman, by a
few dexterous strokes of diplomacy during a brief visit
to Paris, easily succeeded; and the ambassador's mission
was simplified to the role of a mere observer and re
porter of occurrences.
INTRODUCTION 13
By taste, nature, and training, Grotius was a jurist and
not a diplomatist, and he soon realized that the two vo
cations, if not diametrically opposed, are at least sepa
rated from each other by a vast interval. His diplomatic
correspondence betrays the keen observer and the con
scientious moralist rather than the accomplished negoti
ator. Among the observations recorded in his dispatches,
one may be quoted as an example of his penetration
and his humor. Speaking of the Dauphin, the future
Louis XIV, he says: (( His frightful and precocious avid
ity is a bad omen for neighboring peoples; for he is at
present on his ninth nurse, whom he is rending and
murdering as he has the others! w
It is painful to behold the great father of international
jurisprudence descending in his dispatches to petty de
tails of precedence and alienating from himself the sym
pathies of his colleagues by ridiculous ceremonial
pretensions. He would no longer visit Mazarin, because
the Cardinal insisted on calling him EMINENCE instead of
EXCELLENCE; Grotius considering this distinction of terms
a slight upon his rank as ambassador. So persistent
was he in these follies and so rancorous were the feuds
that the apostle of peace elicited that, in December, 1636,
less than two years after his arrival at Paris, he advised
Sweden to send to France a simple CJiarge d' Affaires,
instead of an ambassador, in order to restore diplomatic
relations.
His quarrels concerning precedence, which rendered
him an object of ridicule at the French Court, were not
the only griefs of the ambassador of Sweden. In
adequately recompensed, he was obliged to wait two
years for his salary and finally, being reduced to a
condition in which he could no longer maintain exist
ence otherwise, he was compelled to demand of the royal
treasury of France a part of the subsidies promised to
the army of his adopted country. Weary of his impor
tunities, the French government repeatedly requested his
recall. Disgusted with his mission, Grotius at last aban
doned the duties of his office to the intriguing adven
turer, Cerisante, who was sent to aid him, and buried him
self in his books until his return to Sweden at his own
request in 1645.
Queen Christina of Sweden, a patroness of scholars,
desirous of aiding Grotius and of retaining him in the
service of her kingdom, made many offers and promises,
H THE RIGHTS OF WAR AND PEACE
but their execution being deferred, he became impatient
of his lot, refused a position as counselor of state, and
resolved to leave the country. His plan to abandon
Stockholm secretly was prevented by a messenger of the
queen who followed him to the port where he intended
to embark and induced him to return for a farewell
audience. With a handsome present of money and silver
plate he took passage on a vessel placed at his disposition
to convey him to Liibeck. Off the coast near Dantzic a
violent tempest arose. On the iyth of August, 1645, the
vessel was driven ashore and Grotius, overcome by his
trying experiences, was taken ill at Rostock, where a few
days later he passed away.
The later years of his life had been chiefly devoted to
plans for the establishment of peace in the religious
world, whose dissensions gave him great distress of
mind.
The country of his birth, which had so long denied
him citizenship, received him at last to the silent hospi
tality of the tomb. His body was taken to Delft, his
native town, where his name is now held in grateful
reverence.
At the time when Grotius left Stockholm, the last of
the plenipotentiaries had arrived at Minister and Osna-
briick to attend the great European congress convoked
to terminate the hostilities of the Thirty Years' War. It
is a tradition, but incapable of satisfactory proof, that it
was with the purpose of being present at the councils of
this congress that the author of ^De Jure Belli ac Pads J>
left Sweden for Germany. However this may be, it is
certain that the mediation of the king of Denmark at
Osnabriick and of the papal legate at Miinster, though
unsuccessful, was in accordance with the idea of Grotius
expressed in the words : (( It would be useful, and indeed
it is almost necessary, that certain congresses of Christian
powers should be held, in which controversies that have
arisen among some of them may be decided by others
who are not interested. w The immediate establishment
of an international tribunal, evidently contemplated in
this suggestion, was not in harmony with the temper of
those times; but it cannot be doubted that the Peace of
Westphalia, whose treaties were to form a code of public
law for Europe, was to a great degree an embodiment
of the principles which Grotius was the first to enun
ciate.
INTRODUCTION 15
His ^De Jure Belli ac Pads M had already become a
classic even before the author's death, and special pro
fessorships were soon founded in the universities to ex
pound its principles. It would be tedious to name the
numerous editions, translations, and commentaries which
have given it an exceptional place in the literature of
Europe. This task has been in part performed, however,
by Dr. Rogge in his (( Bibliotheca Grotiana? published at
The Hague in 1883, and intended to be a full bibliography
of Grotius's works. The whole number of titles included
is 462, but they do not comprise the writings of the
generations of jurists who have been inspired by the
great master or of the critics and biographers who have
discussed his life and work.
Tardily, but with full contrition for the bitter wrong
done to one of her greatest and noblest sons, the memory
of Grotius has received from his native land abundant
recognition and commemoration. The appropriate tomb
that marks his resting place in the Nieuwe Kerk at
Delft, symbolical of his learning, genius, and renown,
was erected in 1781. On the lyth of September, 1886, a
noble statue of the great jurist was unveiled in the
public square of his native town in front of the church
which contains his tomb. Thus, more than a century
after his death, and again still another century later,
Holland has paid her tribute of respect to her illustrious
citizen.
The later years have also brought new honors to Gro
tius's feet. At the recent Peace Conference at The
Hague was completed the great structure of international
comity whose corner stone was laid by him in 1625. It
was most fitting that an international congress called in
the interest of peace should blend with the negotiation
of conventions for the pacific settlement of disputes be
tween nations by a permanent tribunal, and for the
amelioration of the laws of war, a celebration of the
distinguished writer whose great thought had at last
borne such precious fruits. In pursuance of instructions
received from the Secretary of State, the United States
Commission invited their colleagues in the congress, the
heads of the Dutch universities, and the high civic au
thorities to join with them in observing the 4th of
July by celebrating the memory of the great jurist.
With appropriate exercises in the apse of the old church,
near the monument of Grotius and mausoleum of William
1 6 THE RIGHTS OF WAR AND PEACE
the Silent, the representatives of twenty-six nations
gathered to do him honor. A beautiful commemorative
wreath of silver was laid upon Grotius's tomb bearing
the inscription :
TO
THE MEMORY OF HUGO GROTIUS
IN
REVERENCE AND GRATITUDE
FROM THE UNITED STATES OF AMERICA
ON THE
OCCASION OF THE INTERNATIONAL PEACE CONFERENCE
AT
THE HAGUE JULY 4TH, 1899.
An eloquent oration by the Honorable Andrew D.
White, Ambassador of the United States to Germany,
and the head of the Commission, followed by other ap
propriate addresses, recalled the debt of mankind to the
author of ^De Jure Belli ac Pads )}; and thus the plenipo
tentiaries of the nineteenth century did homage to the ex
ile of the sixteenth who had taught the world that even in
the shock and storm of battle humanity cannot escape the
dominion of its own essential laws, and that even inde
pendent states are answerable before the bar of human
nature for obedience to principles imposed by a Power
higher than the prerogatives of princes or the will of
nations.
THE RIGHTS
OF
WAR AND PEACE,
INCLUDING
THE LAW OF NATURE AND OF NATIONS.
BOOK I.
CHAPTER I.
Of War — Definition of War — Right, of Governors and of the gov
erned, and of equals — Right as a Quality divided into Faculty and
Fitness — Faculty denoting Power, Property, and Credit — Divided into
Private and Superior — Right as a Rule, natural and voluntary — Law
of Nature divided — Proofs of the Law of Nature — Division of Rights
into human and divine — Human explained — Divine stated — Mosaic
Law not binding upon Christians.
I. THE disputes arising among those who are held together
by no common bond of civil laws to decide their dissen
sions, like the ancient Patriarchs, who formed no national
community, or the numerous, unconnected communities,
whether under the direction of individuals, or kings, or
. persons invested with Sovereign power, as the leading
men in an aristocracy, and the body of the people in a
republican government; the disputes, arising among any
of these, all bear a relation to the circumstances of war
or peace. But because war is undertaken for the sake of
peace, and there is no dispute, which may not give rise
to war, it will be proper to treat all such quarrels, as
commonly happen, between nations, as an article in the
rights of war: and then war itself will lead us to peace,
as to its proper end.
II. In treating of the rights of war, the first point,
that we have to consider, is, what is war, which is the
2 (17)
1 8 HUGO GROTIUS
subject of our inquiry, and what is the right, which we
seek to establish. Cicero styled war a contention by force.
But the practice has prevailed to indicate by that name,
not an immediate action, but a state of affairs; so that
war is the state of contending parties, considered as such.
This definition, by its general extent, comprises those
wars of every description, that will form the subject of
the present treatise. Nor are single combats excluded
from this definition. For, as they are in reality more
ancient than public wars, and undoubtedly, of the same
nature, they may therefore properly be comprehended
under one and the same name. This agrees very well
with the true derivation of the word. For the Latin
word, Bellum, WAR, comes from the old word, Due Hum,
a DUEL, as Bonus from Duonus, and Bis from Duis.
Now Duellum was derived from Duo; and thereby implied
a difference between two persons, in the same sense as
we term peace, UNITY, from Unitas, for a contrary reason.
So the Greek word, -^-uo?, commonly used to signify war,
expresses in its original, an idea of multitude. The
ancient Greeks likewise called it Ay^, which imports a DIS
UNION of minds; just as by the term duy, they meant the
DISSOLUTION of the parts of the body. Nor does the use
of the word, WAR, contradict this larger acceptation of it.
For though some times it is only applied to the quarrels
of states, yet that is no objection, as it is evident that a
general name is often applied to some particular object,
entitled to peculiar distinction. Justice is not included
in the definition of war, because the very point to be
decided is, whether any war be just, and what war may
be so called. Therefore we must make a distinction be
tween war itself, and the justice of it.
III. As the Rights of War is the title, by which this
treatise is distinguished, the first inquiry, as it has been
already observed, is, whether any war be just, and, in
the next place, what constitutes the justice of that war.
For, in this place, right signifies nothing more than
what is just, and that, more in a negative than a posi
tive sense; so that RIGHT is that, which is not unjust, ^jf
Now any thing is unjust, which is repugnant to the \
nature of society, established among rational creatures. ' *
Thus for instance, to deprive another of what belongs to
him, merely for one's own advantage, is repugnant to
the law of nature, as Cicero observes in the fifth Chapter
of his third book of offices; and, by way of proof, he
THE RIGHTS OF WAR AND PEACE 19
says that, if the practice were general, all society and
intercourse among men must be overturned. Florentinus,
the Lawyer, maintains that is impious for one man to
form designs against another, as nature has established
a degree of kindred amongst us. On this subject, Seneca
remarks that, as all the members of the human body
agree among themselves, because the preservation of each
conduces to the welfare of the whole, so men should for
bear from mutual injuries, as they were born for society,
which cannot subsist unless all the parts of it are de
fended by mutual forbearance and good will. But as
there is one kind of social tie founded upon an equality,
for instance, among brothers, citizens, friends, allies, and
another on pre-eminence, as Aristotle styles it, subsisting
between parents and children, masters and servants, sov
ereigns and subjects, God and men. So justice takes
place either amongst equals, or between the governing
and the governed parties, notwithstanding their differ
ence of rank. The former of these, if I am not mis
taken, may be called the right of equality, and the latter
the right of superiority.
IV. There is another signification of the word RIGHT,
different from this, but yet arising from it, which relates
directly to the person. In which sense, RIGHT is a moral
quality annexed to the person, justly entitling him to
possess some particular privilege, or to perform some
particular act. This right is annexed to the person,
although it sometimes follows the things, as the services
of lands, which are called REAL RIGHTS, in opposition
to those merely PERSONAL. Not because these rights are
not annexed to persons, but the distinction is made,
because they belong to the persons only who possess
some particular things. This moral quality, when per
fect is called a FACULTY; when imperfect, an APTITUDE.
The former answers to the ACT, and the latter to the
POWER, when we speak of natural things.
V. Civilians call a faculty that Right, which every man
nas to his own; but we shall hereafter, taking it in its
strict and proper sense, call it a right. This right com
prehends the power, that we have over ourselves, which
s called liberty, and the power, that we have over others,
as that of a father over his children, and of a master
over his slaves. It likewise comprehends property, which
is either complete or imperfect; of the latter kind is the
use or possession of any thing without the property, or
20 HUGO GROTIUS
power of alienating it, or pledges detained by the creditors
till payment be made. There is a third signification,
which implies the power of demanding what is d^E? to
which the obligation upon the party indebted, to discharge
wrhat is owing, corresponds.
VI. Right, strictly taken, is again twofold, the one,
PRIVATE, established for the advantage of each individual,
the other, SUPERIOR, as involving the claims, which the
state has upon individuals, and their property, for the
public good. Thus the Regal authority is above that of
a father and a master, and the Sovereign has a greater
right over the property of his subjects, where the public
good is concerned, than the owners themselves have.
And when the exigencies of the state require a supply,
every man is more obliged to contribute towards it,
than to satisfy his creditors.
VII. Aristotle distinguishes aptitude or capacity, by the
name of worth or merit, and Michael of Ephesus, gives
the epithet of SUITABLE or BECOMING to the equality estab
lished by this rule of merit.
IX.* There is also a third signification of the word
Right, which has the same meaning as Law, taken in its
most extensive sense, to denote a rule of moral action,
obliging us to do what is proper. We say O.BLI.QLNG us.
For the best counsels or precepts, if they lay us under
no obligation to obey them, cannot come under the
denomination of law or right. Now as to permission,!
it is no act of the law, but only the silence of the law,
it however prohibits any one from impeding another in
doing what the law permits. But we have said, the law
obliges us to do what is proper, not simply what is just;
because, under this notion, right belongs to the substance
not only of justice, as we have explained it, but of all
other virtues. Yet from giving the name of a RIGHT to
* The eighth Section is omitted, the greater part of it consisting of
verbal criticism upon Aristotle's notions of geometrical and arith
metical justice; a discussion no way conducive to that clearness an>l
simplicity, so necessary to every didactic treatise. — TRANSLATOR.
f The law, by its silence, permits those acts, which it does not
prohibit. Thus many acts, if they are not evil in themselves, are no
offence, till the law has made them such. Of this kind are many
acts, such as exporting gold, or importing certain articles of trade;
doing certain actions, or following certain callings, without the requisite
qualifications, which are made punishable offences by the Statute-
Law. Those actions, before the prohibition was enjoined by the law,
came under the class of what IJrotius calls permissions.
THE RIGHTS OF WAR AND PEACE 21
that, which is PROPER, a more general acceptation of the
word justice has been derived. The best division of
right, in this general meaning, is to be found in Aristotle,
who, defining one kind to be natural, and the other
voluntary, calls it a LAWFUL RIGHT in the strictest sense
of the word law; and some times an instituted right.
The same difference is found among the Hebrews, who,
by way of distinction, in speaking, call that natural
right, PRECEPTS, and the voluntary right, STATUTES: the
former of which the Septuagint call diKad>/j.ara, and the
latter ^vroAa?.
X. Natural right is the dictate of right reason, shew
ing the moral turpitude, or moral necessity,* of any act
from its agreement or disagreement with a rational na-
tuje, and consequently that such an act is either forbid
den or commanded by God, the author of nature. The
actions, upon which such a dictate is given, are either
binding or unlawful in themselves, and therefore neces
sarily understood to be commanded or forbidden by God.
This mark distinguishes natural right, not only from
human law, but from the law, which God himself has
been pleased to reveal, called, by some, the voluntary J
divine right, which does not command or forbid things
in themselves either binding or unlawful, but makes them
unlawful by its prohibition, and binding by its command.
But, to understand natural right, we must observe that
some things are said to belong to that right, not prop
erly, but, as the schoolmen say, by way of accommoda
tion. These are not repugnant to natural right, as we
have already observed that those things are called JUST,
in which there is no injustice. Some times also, by a
wrong use of the word, those things which reason shews
to be proper, or better than things of an opposite kind,
although not binding, are said to belong to natural right.
We must farther remark, that natural right relates not
only to those things that exist independent of the human
will, but to many things, which necessarily follow the
exercise of that will. Thus property, as now in use, was
at first a creature of the human will. But, after it was
established, one man was prohibited by the law of nature
from seizing the property of another against his will.
Wherefore, Paulus the Lawyer said, that theft is ex
pressly forbidden by the law of nature. Ulpian condemns
* By moral necessity is meant nothing more than that the Laws of
Nature must always bind us.
22 HUGO GROTIUS
it as infamous in its own nature ; to whose authority that
of Euripides may be added, as may be seen in the verses
of Helena:
(( For God himself hates violence, and will not have us
to grow rich by rapine, but by lawful gains. That
abundance, which is the fruit of unrighteousness, is an
abomination. The air is common to men, the earth also,
where every man, in the ample enjoyment of his posses
sion, must refrain from doing violence or injury to that
of another. }>
Now the Law of Nature is so unalterable, that it can
not be changed even by God himself. For although the
power of God is infinite, yet there are some things, to
which it does not extend. Because the things so ex
pressed would have no true meaning, but imply a con
tradiction. Thus two and two must make four, nor is it
possible to be otherwise ; nor, again, can what is really
evil not be evil. And this is Aristotle's meaning, when
he says, that some things are no sooner named, than we
discover their evil nature. For as the substance of things
in their nature and existence depends upon nothing but
themselves; so there are qualities inseparably connected
with their being and essence. Of this kind is the evil
of certain actions, compared with the nature of a reason
able being. Therefore God himself suffers his actions to
be judged by this rule, as may be seen in the xviiith
chap, of Gen. 25. Isa. v. 3. Ezek. xviii. 25. Jer. ii. 9.
Mich. vi. 2. Rom. ii. 6., iii. 6. Yet it sometimes hap
pens that, in those cases, which are decided by the law
of nature, the undiscerning are imposed upon by an
appearance of change. Whereas in reality there is no
change in the unalterable law of nature, but only in the
things appointed by it, and which are liable to variation.
For example, if a creditor forgive me the debt, which I
owe him, I am no longer bound to pay it, not because
the law of nature has ceased to command the payment
of a just debt, but because my debt, by a release, has
ceased to be a debt. On this topic, Arrian in Epictetus
argues rightly, that the borrowing of money is not the
only requisite to make a debt, but there must be the
additional circumstance of the loan remaining undis
charged. Thus if God should command the life, or
property of any one to be taken away, the act would not
authorise murder or robbery, words which always include
a crime. • But that cannot be murder or robbery, which
THE RIGHTS OP WAR AND PEACE 23
is done by the express command of Him, who is the
sovereign Lord of our lives and of all things. There
are also some things allowed by the law of nature, not
absolutely, but according to a certain state of affairs.
Thus, by the law of nature, before property was intro
duced, every one had a right to the use of whatever he
found unoccupied; and, before laws were enacted, to
avenge his personal injuries by force.
XI. The distinction found in the books of the Roman
Law, assigning one unchangeable right to brutes in com
mon with man, which in a more limited sense they call
the law of nature, and appropriating another to men,
which they frequently call the Law of Nations, is scarcely
of any real use. For no beings, except those that can
form general maxims, are capable of possessing a right,
which Hesiod has placed in a clear point of view, ob
serving (( that the supreme Being has appointed laws for
men; but permitted wild beasts, fishes, and birds to
devour each other for food. w For they have nothing like
justice, the best gift, bestowed upon men.
Cicero, in his first book of offices, says, we do not talk
of the justice of horses or lions. In conformity to which,
Plutarch, in the life of Cato the elder, observes, that we
are formed by nature to use law and justice towards men
only. In addition to the above, Lactantius may be cited,
who, in his fifth book, says that in all animals devoid of
reason we see a natural bias of self-love. For they hurt
others to benefit themselves; because they do not know
the evil of doing wilful hurt. But it is not so with man,
who, possessing the knowledge of good and evil, refrains,
even with inconvenience to himself, from doing hurt.
Polybius, relating the manner in which men first entered
into society, concludes, that the injuries done to parents
or benefactors inevitably provoke the indignation of man
kind, giving an additional reason, that as understanding
and reflection form the great difference between men and
other animals, it is evident they cannot transgress the
bounds of that difference like other animals, without ex
citing universal abhorrence of their conduct. But if ever
justice is attributed to brutes, it is done improperly, from
some shadow and trace of reason they may possess. But
it is not material to the nature of right, whether the
actions appointed by the law of nature, such as the care
of our offspring, are common to us with other animals or
not, or, like the worship of God, are peculiar to man.
24 HUGO GROTIUS
XII. The existence of the Law of Nature is proved by
two kinds of argument, a priori, and a posteriori, the
former a more abstruse, and the latter a more popular
method of proof. We are said to reason a priori, when
we show the agreement or disagreement of any thing
with a reasonable and social nature; but a posteriori,
when without absolute proof, but only upon probability,
any thing is inferred to accord with the law of nature, be
cause it is received as such among all, or at least the
more civilized nations. For a general effect can only
arise from a general cause. Now scarce any other cause
can be assigned for so general an opinion, but the com
mon sense, as it is called, of mankind. There is a sen
tence of Hesiod that has been much praised, that
opinions which have prevailed amongst many nations, must
have some foundation. Heraclitus, establishing common
reason as the best criterion of truth, says, those things
are certain which generally appear so. Among other
authorities, we may quote Aristotle, who says it is a
strong proof in our favour, when all appear to agree
with what we say, and Cicero maintains that the con
sent of all nations in any case is to be admitted for the
law of nature. Seneca is of the same opinion, any thing,
says he, appearing the same to all men is a proof of its
truth. Quintilian says, we hold those things to be true,
in which all men agree. We have called them the more
civilized nations, and not without reason. For, as Por
phyry well observes, some nations are so strange that
no fair judgment of human nature can be formed from
them, for it would be erroneous. Anclronicus, the Rho-
dian says, that with men of a right and sound under
standing, natural justice is unchangeable. Nor does it
alter the case, though men of disordered and perverted
minds think otherwise. For he who should deny that
honey is sweet, because it appears not so to men of a
distempered taste, would be wrong. Plutarch too agrees
entirely with what has been said, as appears from a
passage in his life of Pompey, affirming that man neither
was, nor is, by nature, a wild unsociable creature. But
it is the corruption of his nature which makes him so:
yet by acquiring new habits, by changing his place, and
way of living, he may be reclaimed to his original gen
tleness. Aristotle, taking a description of man from his
peculiar qualities, makes him an animal of a gentle
nature, and in another part of his works, he observes,
THE RIGHTS OF WAR AND PEACE 25
that in considering the nature of man, we are to take
our likeness from nature in its pure, and not in its
corrupt state.
XIII. It has been already remarked, that there is
another kind of right, which is the voluntary right,
deriving its origin from the will, and is either human
or divine.
XIV. We will begin with the human as more gener
ally known. Now this is either a civil right, or a right
more or less extensive than the civil right. The civil
right is that which is derived from the civil power. The
civil power is the sovereign power of the state. A state
is a perfect body of free men, united together in order
to enjoy common rights and advantages. The less ex
tensive right, and not derived from the civil power
itself, although subject to it, is various, comprehending
the authority of parents over children, masters over serv
ants, and the like. But the law of nations is a more
extensive right, deriving its authority from the consent
of all, or at least of many nations.
It was proper to add MANY, because scarce any right
can be found common to all nations, except the law of
nature, which itself too is generally called the law of
nations. Nay, frequently in one part of the world, that
is held for the law of nations, which is not so in another.
Now this law of nations is proved in the same man
ner as the unwritten civil law, and that is by the
continual experience and testimony of the Sages of the
Law. For this law, as Dio Chrysostom well observes,
is the discoveries made by experience and time. And in
this we derive great advantage from the writings of emi
nent historians, f
XV. The very meaning of the words divine voluntary
right, shows that it springs from the divine will, by
which it is distinguished from natural law, which, it has
already been observed, is called divine also. This law
admits of what Anaxarchus said, as Plutarch relates in
the life of Alexander, though without sufficient accuracy,
that God does not will a thing, because it is just, but
that it is just, or binding, because God wills it. Now
this law was given either to mankind in general, or to
one particular people. We find three periods, at which
it was given by God to the human race, the first of
which was immediately after the creation of man, the
second upon the restoration of mankind after the flood,
26 HUGO GROTIUS
and the third upon that more glorious restoration through
Jesus Christ. These three laws undoubtedly bind all
men, as soon as they come to a sufficient knowledge of
them.
XVI. Of all nations there is but ;one, to which God
particularly vouchsafed to give laws, and that was the
people of Israel, whom Moses thus addresses in the
fourth Chap, of Deuteronomy, ver. 7. ''What nation is
there so great who hath God so nigh unto them, as the
Lord our God is in all things that we call upon him for ?
And what nation is there so great, who have statutes and
judgments so righteous, as all this law, which I set before
you this day!w And the Psalmist in the cxlvii. Psalm,
(< God shewed his word unto Jacob, his statutes and ordi
nances unto Israel. He hath not dealt so with any nation,
and as for his judgments they have not known them. J>
Nor can we doubt but that those Jews, with whom we
may class Tryphon in his dispute with Justin, are mis
taken, who suppose that even strangers, if they wish to
be saved, must submit to the yoke of the Mosaic Law.
For a law does not bind those, to whom it has not been
given. But it speaks personally to those, who are imme
diately under it. Hear O Israel, and we read everywhere
of the covenant made with them, by which they became
the peculiar people of God. Maimonides acknowledges
and proves the truth of this from the xxxiii. Chapter and
fourth verse of Deuteronomy.
But among the Hebrews themselves there were always
living some strangers, persons devout and fearing God,
such was the Syrophoenician woman, mentioned in the
Gospel of St. Matthew, xv. 22. Cornelius the Centurion.
Acts. x. the devout Greeks, Acts xviii. 6. Sojourners, or
strangers, also are mentioned. Levit. xxv. 47. These,
as the Hebrew Rabbis themselves inform us, were obliged
to observe the laws given to Adam and Noah, to abstain
from idols and blood, and other things, that were pro
hibited; but not in the same manner to observe the laws
peculiar to the people of Israel. Therefore though the
Israelites were not allowed to eat the flesh of a beast,
that had died a natural death; yet the strangers living
among them were permitted. Deut. xiv. 21. Except in
some particular laws, where it was expressly said, that
strangers no less than the native inhabitants were obliged
to observe them. Strangers also, who came from other
countries, and were not subject to the Jewish laws, might
THE RIGHTS OF WAR AND PEACE 27
worship God in the temple of Jerusalem, but standing in
a place separate and distinct from the Israelites. I. Kings
viii. 41. 2 Mac. iii. 35. John xii 20. Acts viii. 27. Nor
did Elisha ever signify to Naaman the Syrian, nor Jonas
to the Ninevites, nor Daniel to Nebuchadnezzar, nor the
other Prophets to the Tyrians, the Moabites, the Egyp
tians, to whom they wrote, that it was necessary for them
to adopt the Mosaic Law.
What has been said of the whole law of Moses applies
to circumcision, which was a kind of introduction to the
law. Yet with this difference that the Israelites alone
were bound by the Mosaic Law, but the whole posterity
of Abraham by the law of circumcision. From hence
we are informed by Jewish and Greek Historians, that
the Idumaeans, or Edomites were compelled by the Jews
to be circumcised. Wherefore there is reason to believe
that the numerous nations, who, besides the Israelites,
practised circumcision, and who are mentioned by Herodo
tus, Strabo, Philo, Justin, Origen, Clemens, Alexandrinus,
Epiphanius, and Jerom, were descended from Ishmael,
Esau, or the posterity of Keturah. But what St. Paul
says, Rom. ii. 14. holds good of all other nations; that
the Gentiles, not having the law, yet doing by nature
the things contained in the law, become a law to them
selves. Here the word nature may be taken for the
primitive source of moral obligation; or, referring it to
the preceding parts of the Epistle, it may signify the
knowledge, which the Gentiles acquired of themselves
without instruction, in opposition to the knowledge de
rived to the Jews from the law, which was instilled
into them from their cradle, and almost from their birth.
<( So the Gentiles show the work, or the moral precepts
of the law, written in their hearts, their consciences also
bearing witness, and their thoughts the mean while
accusing or else excusing one another. }> And again in
the 26th ver. ; <(If the uncircumcision keep the righteous
ness of the law, shall not his uncircumcision be counted
for circumcision ? " Therefore Ananias, the Jew, as
we find in the history of Josephus, very properly
taught Tzates, or as Tacitus calls him, Ezates, the
Adiabenian, that even without circumcision, God might
be rightly worshipped and rendered propitious. For
though many strangers were circumcised, among the
Jews, and by circumcision bound themselves to observe
the law, as St. Paul explains it in Gal. v. 3. ; they did
28 HUGO GROTIUS
it partly to obtain the freedom of the country; for pros
elytes called by the Hebrews, proselytes of righteous
ness, enjoyed equal privileges with the Israelites. Num.
xv. : and partly to obtain a share in those promises, which
were not common to mankind, but peculiar to the Jewish
people, although it cannot be denied, that in later ages
an erroneous opinion prevailed, that there was no sal
vation out of the Jewish pale. Hence we may infer,
that we are bound by no part of the Levitical law,
strictly and properly so called; because any obligation,
beyond that arising from the law of nature, must pro
ceed from the express will of the law-giver. Now it
cannot be discovered by any proof, that God intended
any other people, but the Israelites to be bound by that
law. Therefore with respect to ourselves, we have no
occasion to prove an abrogation of that law ; for it could
never be abrogated with respect to those, whom it never
bound. But the Israelites were released from the cere
monial part, as soon as the law of the Gospel was pro
claimed; a clear revelation of which was made to one of
the Apostles, Acts x. 15. And the other pa-ita oa~ the
Mosaic law lost their peculiar distinction, when the Jews
ceased to be a people by the desolation and destruction
of their city without any hopes of restoration. Indeed
it was not a release from the law of Moses that we, who
were strangers to the Commonwealth of Israel, obtained
by the coming of Christ. But as before that time, our
hopes in the goodness of God were obscure and uncertain,
we gained the assurance of an express covenant, that
we should be united in one Church with the seed of
Israel, the children of the patriarchs, their law, that
was the wall of separation between us, being broken
down. Eph. ii. 14.
XVII. Since then the law given by Moses imposes no
direct obligation upon us, as it has been already shown,
let us consider whether it has any other use both in this
inquiry into the rights of war, and in other questions of
the same kind. In the first place, the Mosaic law shows
that what it enjoins is not contrary to the law of nature.
For since the law of nature is perpetual and unchange
able, nothing contradictory to it could be commanded by
God, who is never unjust. Besides the law of Moses is
called in the xix. Psalm an undefiled and right law, and
St. Paul, Rom. vii. 12, describes it to be holy, just, and
good. Its precepts are here spoken of, for its permis-
THE RIGHTS OF WAR AND PEACE 29
sions require a more distinct discussion. For the bare
permission, signifying the removal of an impediment, or
prohibition, has no relation to the present subject. A
positive, legal permission is either full, granting us power
to do some particular act without the least restriction, or
less full, only allowing men impunity for certain actions,
and a right to do them without molestation from others.
From the permission of the former kind no less than
from a positive precept, it follows that what the law
allows, is not contrary to the law of nature.* But with
regard to the latter kind of permission, allowing impunity
for certain acts, but not expressly authorizing them, we
cannot so readily conclude those acts to be conformable
to the law of nature, f Because where the words of per
mission are ambiguous in their meaning, it is better for
us to interpret according to the established law of nature,
what kind of permission it is, than from our conception
of its expediency to conclude it conformable to the laws
of nature. Connected with this first observation there is
another, expressive of the power that obtains among
Christian Princes to enact laws of the same import with
those given by Moses, except such as related entirely to
the time of the expected Messiah, and the Gospel then
unrevealed, or where Christ himself has in a general or
particular manner established any thing to the contrary.
For except in these three cases, no reason can be devised,
why any thing established by the law of Moses should be
now unlawful. In the third place it may be observed,
that whatever the law of Moses enjoined relating to those
virtues, which Christ required of his disciples, should be
* To explain the meaning of Grotius in this place, recourse must
be had to first principles. Thus the law of nature authorizing self-
defence in its fullest extent, the laws of nations, which authorize war
for the same purpose, cannot be repugnant to it.
f The Law of England on homicide excusable by self-defence, will
throw light on the sentiments of Grotius in this place. «The law
requires, that the person who kills another in his own defence, should
have retreated as far as he conveniently or safely can, to avoid the
violence of the assault, before he turns upon his assailant; and that,
not fictitiously, or in order to watch his opportunity, but from a real
tenderness of shedding his brother's blood. And though it may be
cowardice, in time of war, between two independent nations, to flee
from our enemy; yet between two fellow subjects the law counte
nances no such point of honour; because the king and his courts are
the "V 'indices injun.arum, and will give to the party wronged all the
satisfaction he deserves. And this is the doctrine of universal justice,
as well as of the municipal law.}) — Blackstone's Com. vol. 4, chap. 14.
3o HUGO GROTIUS
fulfilled by Christians now, in a greater degree, from their
superior knowledge, and higher motives. Thus the vir
tues of humility, patience, and charity are required of
Christians in a more perfect manner than of the Jews
under the Mosaic dispensation, because the promises of
heaven are more clearly laid before us in the Gospel.
Hence the old law, when compared with the Gospel, is
said to have been neither perfect nor faultless, and
Christ is said to be the end of the law, and the law our
schoolmaster to bring us to Christ. Thus the old law
respecting the Sabbath, and the law respecting tithes,
show that Christians are bound to devote not less than a
seventh portion of their time to divine worship, nor less
than a tenth of their fruits to maintain those who are
employed in holy things, or to other pious uses.
CHAPTER II.
INQUIRY INTO THE LAWFULNESS OF WAR.
Reasons proving the lawfulness of War — Proofs from History — Proofs
from general consent — The Law of Nature proved not repugnant
to War — War not condemned by the voluntary Divine Law preced
ing the Gospel — Objections answered — Review of the question
whether War be contrary to the Law of the Gospel — Arguments from
Scripture for the negative Opinions — Answer to the Arguments
taken from Scripture for the affirmative — The opinions of the primi
tive Christians on the subject examined.
I. AFTER examining the sources of right, the first and
most general question that occurs, is whether any war
is just, or if it is ever lawful to make war. But this
question like many others that follow, must in the first
place be compared with the rights of nature. Cicero in
the third book of his Bounds of Good and Evil, and in
other parts of his works, proves with great erudition from
the writings of the Stoics, that there are certain first
principles of nature, called by the Greeks the first natural im
pressions, which are succeeded by other principles of obliga
tion superior even to the first impressions themselves.
He calls the care, which every animal, from the moment
of its birth, feels for itself and the preservation of its
condition, its abhorrence of destruction, and of every
thing that threatens death, a principle of nature. Hence,
he says, it happens, that if left to his own choice, every
man would prefer a sound and perfect to a mutilated
and deformed body. So that preserving ourselves in a
natural state, and holding to every thing conformable,
and averting every thing repugnant to nature is the first
duty.
But from the knowledge of these principles, a notion
arises of their being agreeable to reason, that part of a
man, which is superior to the body. Now that agree
ment with reason, which is the basis of propriety, should s
have more weight than the impulse of appetite ; because
the principles of nature recommend .right reason as a rule
that ought to be of higher value than bare instinct. As
the truth of this is easily assented to by all men of
sound judgment without any other demonstration, it
(31)
32 HUGO GROTIUS
follows that in inquiring into the laws of nature the first
object of consideration is, what is agreeable to those prin
ciples of nature, and then we come to the rules, which,
though arising only out of the former, are of higher
dignity, and not only to be embraced, when offered, but
pursued by all the means in our power.
This last principle, which is called propriety, from its
fitness, according to the various things on which it turns,
sometimes is limited to a very narrow point, the least
departure from which is a deviation into vice ; sometimes
it allows a wider scope, so that some actions, even lauda
ble in themselves, may be omitted or varied without
crime. In this case there is not an immediate distinc
tion between right and wrong; the shades are gradual,
and their termination unperceived ; not like a direct con
trast, where the opposition is immediately seen, and the
first step is a transgression of the fixed bounds.
The general object of divine and human laws is to give
the authority of obligation to what was only laudable in
itself. It has been said above that an investigation of
the laws of nature implies an inquiry, whether any par
ticular action may be done without injustice : now by an
act of injustice is understood that, which necessarily has
in it any thing repugnant to the nature of a reasonable
and social being. So far from any thing in the princi
ples of nature being repugnant to war, every part of
them indeed rather favours it. For the preservation of
our lives and persons, which is the end of war, and the
possession or acquirement of things necessary and useful
to life is most suitable to those principles of nature, and
to use force, if necessary, for those occasions, is no way
dissonant to the principles of nature, since all animals are
endowed with natural strength, sufficient to assist and
defend themselves.
Xenophon says, that every animal knows a certain
method of fighting without any other instructor than
nature. In a fragment of Ovid's, called the Art of
Fishery, it is remarked, that all animals know their en
emy and his means of defence, and the strength and
measure of their own weapons. Horace has said, (<the
wolf attacks with its teeth, the bull with its horns, and
whence is this knowledge derived but from instinct ? >}
On this subject Lucretius enlarges, observing that <( every
creature knows its own powers. The calf butts with its
forehead, before its horns appear, and strikes with all
THE RIGHTS OF WAR AND PEACE 33
imaginable fury. }) On which Galen expresses himself in
the following manner, <( every animal appears to defend
itself with that part of its body, in which it excels others.
The calf butts with its head before its horns have grown,
and the colt strikes with its heel before its hoofs are
hard, as the young dog attempts to bite before his teeth
are strong. >J The same writer in describing the use of
different parts of the body, says, <( that man is a crea
ture formed for peace and war. His armour forms not an
immediate part of his body ; but he has hands fit for pre
paring and handling arms, and we see infants using them
spontaneously, without being taught to do so. }> Aristotle
in the 4th book, and tenth chapter of the history of
animals, says, <(that the hand serves man for a spear, a
s\vord, or any arms whatever, because it can hold and
wield them. }) Now right reason and the nature of soci
ety which claims the second, and indeed more important
place in this inquiry, prohibit not all force, but only that
which is repugnant to society, by depriving another of
his right. For the end of society is to form a common /
and united aid to preserve to ever)' one his own. Which
may easily be understood to have obtained, before what
is now called property was introduced. For the free use
of life and limbs was so much the right of every one,
that it could not be infringed or attacked without injus
tice. So the use of the common productions of nature
was the right of the first occupier, and for any one to
rob him of that was manifest injustice. This may be
more easily understood, since law and custom have es
tablished property under its present form. Tully has
expressed this in the third book of his Offices in the fol
lowing words, uif every member could have separate
feeling, and imagine it could derive vigour from engross
ing the strength of a neighboring part of the body, the
whole frame would languish and perish. In the same
manner if every one of us, for his own advantage, might
rob another of what he pleased, there would be a total
overthrow of human society and intercourse. For though
it is allowed by nature for every one to give the prefer
ence to himself before another in the enjoyment of life
and necessaries, yet she does not permit us to increase
our means and riches by the spoils of others. w It is not
therefore contrary to the nature of society to provide and
consult for ourselves, if another's right is not injured;
the force therefore, which inviolably abstains from touoh-
3
34 HUGO GROTIUS
ing the rights of others, is not unjust. For as the same
Cicero observes some where in his Epistles, that as there
are two modes of contending, the one by argument, and
the other by force, and as the former is peculiar to man,
and the latter common to him with the brute creation,
we must have recourse to the latter, when it is impossi
ble to use the former. And again, what can be opposed
to force, but force ? Ulpian observes that Cassius says,
it is lawful to repel force by force, and it is a right
apparently provided by nature to repel arms with arms,
with whom Ovid agrees, observing that the laws permit
us to take up arms against those that bear them.
II. The observation that all war is not repugnant to
the law of nature, may be more amply proved from
sacred history. For when Abraham with his servants
and confederates had gained a victory, by force of arms,
over the four Kings, who had plundered Sodom, God
approved of his act by the mouth of his priest Melchise-
dech, who said to him, <( Blessed be the most high God,
who hath delivered thine enemies into thine hand. w
Gen. xiv. 20. Now Abraham had taken up arms, as ap
pears from the history, without any special command
from God. But this man, no less eminent for sanctity
than wisdom, felt himself authorized by the law of nature,
as it is admitted by the evidence of Berosus, and Orpheus,
who were strangers.
There is no occasion to appeal to the history of the
seven nations, whom God delivered up into the hands
of the Israelites to be destroyed. For there was a
special command to execute the judgment of God
upon nations guilty of the greatest crimes. From whence
these wars are literally styled in scripture, Battles of the
Lord, as undertaken, not by human will, but by divine
appointment. The xvii. chapter of Exodus supplies a
passage more to the purpose, relating the overthrow
which the Israelites, conducted by Moses and Joshua,
made of the Amalekites. In this act, there was no ex
press commission from God, but only an approval after
it was done. But in the xix. chap, of Deut. ver. 10, 15.
God has prescribed general and standing laws to his
people on the manner of making war, by this circum
stance shewing that a war may be just without any
express commandment from him. Because in the same
passage, a plain distinction is made between the case of
the seven nations and that of others. And as there is
THE RIGHTS OF WAR AND PEACE 35
no special edict prescribing the just causes for which war
may be undertaken, the determination of them is left to
the discovery of natural reason. Of this kind is the war
of Jephthah against the Ammonites, in defence of their
borders. Jud. xi. and the war of David against the same
people for having violated the rights of his Ambassadors.
2 Sam. x. To the preceding observations may be added,
what the inspired writer of the Epistle to the Hebrews
says of Gideon, Barack, Sampson, Jephthah, David, Samuel,
and others, who by faith made war upon kingdoms, pre
vailed in war and put whole armies of their enemies to
flight. Heb. xi. 33, 34. The whole tenor of this passage
shews, that the word faith implies a persuasion, that what
they did was believed to be agreeable to the will of God.
In the same manner, David is said, by a woman distin
guished for her wisdom, I Sam. xxv. 28. to fight the
battles of the Lord, that is to make lawful and just wars.
III. Proofs of what has been advanced, may be drawn
also from the consent of all, especially, of the wisest
nations. There is a celebrated passage in Cicero's speech
for Milo, in which, justifying recourse to force in defence
of life, he bears ample testimony to the feelings of nature,
who has given us this law, which is not written, but in
nate, which we have not received by instruction, hearing
or reading, but the elements of it have been engraven in
our hearts and minds with her own hand : a law which is
not the effect of habit and acquirement, but forms a part
in the original complexion of our frame: so that if our
lives are threatened with assassination or open violence
from the hands of robbers or enemies, ANY means of
defence would be allowed and laudable. He proceeds,
reason has taught this to the learned, necessity to the
barbarians, custom to nations, and nature herself to wild
beasts, to use every possible means of repelling force
offered to their bodies, their limbs and their lives. Caius
and Lawyer says, natural reason permits us to defend
ourselves against dangers. And Florentinus, another legal
authority, maintains, that whatever any one does in de
fence of his person ought to be esteemed right. Josephus
observes, that the love of life is a law of nature strongly
implanted in all creatures, and therefore we look upon
those as enemies, who would openly deprive us of it.
This principle is founded on reasons of equity, so evi
dent, that even in the brute creation, who have no idea of
right, we make a distinction between attack and defence.
36 HUGO GROTIUS
For when Ulpian had said, that an animal without knowl
edge, that is without the use of reason, could not possibly
do wrong, he immediately adds, that when two animals
fight, if one kills the other, the distinction of Quintius
Mutius must be admitted, that if the aggressor were killed
no damages could be recovered; but if the other, which
was attacked, an action might be maintained. There is
a passage in Pliny, which will serve for an explanation of
this, he says that the fiercest lions do not fight with each
other, nor do serpents bite serpents. But if any violence
is done to the tamest of them, they are roused, and upon
receiving any hurt, will defend themselves with the great
est alacrity and vigour.
IV. From the law of nature then which may also be
called the law of nations, it is evident that all kinds of
war are not to be condemned. In the same manner, all
history and the laws of manners of every people suffi
ciently inform us, that war is not condemned by the
voluntary law of nations. Indeed Hermogenianus has
said, that wars were introduced by the law of nations, a
passage which ought to be explained somewhat differ
ently from the general interpretation given to it. The
meaning of it is, that certain formalities, attending war,
were introduced by the law of nations, which formalities
were necessary to secure the peculiar privileges arising
out of the law. From hence a distinction, which there
will be occasion to use hereafter, between a war with
the usual formalities of the law of nations, which is
called just or perfect, and an informal war, which does
not for that reason cease to be just, or agreeable to
right. For some wars, when made upon just grounds,
though not exactly conformable, yet are not repugnant
to the law, as will be explained more fully hereafter.
By the law of the nations, says Livy, provision is made
to repel force by arms ; and Florentinus declares, that the
the law of nations allows us to repel violence and injury,
in order to protect our persons.
V. A greater difficulty occurs respecting the divine
voluntary law. Nor is there any force in the objection
that as the law of nature is unchangeable, nothing can
be appointed even by God himself contrary to it. For
this is true only in those things, which the law of nature
positively forbids or commands; not in those which are
tacitly permitted by the same law. For acts of that
kind, not falling strictly within the general rule, but
THE RIGHTS OF WAR AND PEACE 37
being exceptions to the law of nature, may be either for
bidden or commanded. The first objection usually made
against the lawfulness of war is taken from the law
given to Noah and his posterity, Gen. ix. 5, 6, where
God thus speaks, "Surely the blood of your lives will I
require ; at the hand of every beast will I require it, and
at the hand of every man; at the hand of every man's
brother will I require the life of man. Whoever sheds
man's blood, by man shall his blood be shed; for in the
image of God made he man. w Here some take the phrase
of requiring blood, in the most general sense, and the
other part, that blood shall be shed in its turn, they con
sider as a bare threat, and not an approbation; neither
of which acceptations can be admitted. For the prohi
bition of shedding blood extends not beyond the law
itself, which declares, THOU SHALT NOT KILL; but passes
no condemnation upon capital punishments or wars un
dertaken by public authority.
Neither the law of Moses, nor that given to Noah
established any thing new, they were only a declaratory
repetition of the law of nature, that had been obliterated
by depraved custom. So that the shedding of blood in
a criminal and wanton manner is the only act prohibited
by those commandments. Thus every act of homocide
does not amount to murder, but only that, which is com
mitted with a wilful and malicious intention to destroy
the life of an innocent person. As to what follows about
blood being shed in return for blood, it seems to imply
not a mere act of personal revenge, but the deliberate
exercise of a perfect right, which may be thus explained ;
it is not unjust, according to the principles of nature
that any one should suffer in proportion to the evil he
has done, conformably to the judicial maxim of Rhada-
manthus, that if any one himself suffers what he has
done, it is but just and right. The same opinion is thus
expressed by vSeneca the father; (( it is but a just retalia
tion for any one to suffer in his own person the evil
which he intended to inflict upon another. )} From a
sense of this natural justice, Cain knowing himself guilty
of his brother's blood said, (< whosoever finds me shall
kill me.»
But as in those early times, when men were few, and
aggressions rare, there was less occasion for examples,
God restrained by an express commandment the impulse
of nature which appeared lawful, he forbad any one to
38 HUGO GROTIUS
kill the murderer, at the same time prohibiting all inter
course with him, even so far as not to touch him.*
Plato has established this in his laws, and the same
rule prevailed in Greece, as appears from the following
passage in Euripides, <( our fathers of old did well in
banishing from their intercourse and sight any one that
had shed another's blood; imposing banishment by way
of atonement, rather than inflicting death. }> We find
Thucydides of the same opinion, (( that anciently lighter
punishments were inflicted for the greatest crimes; but
in process of time, as those penalties came to be despised,
legislators were obliged to have recourse to death in cer
tain cases. )J We may add to the above instances the re
mark of Lactantius, that as yet it appeared a sin to
punish even the most wicked men with death.
The conjecture of the divine will taken from the re
markable instance of Cain, whom no one was permitted
to kill passed into a law, so that Lanech, having per
petrated a similar deed, promised himself impunity from
this example. — Gen. iv. 24.
But as before the deluge, in the time of the Giants, the
practice of frequent and wanton murders had prevailed;
upon the renewal of the human race, after the deluge,
that the same evil custom might not be established, God
thought proper to restrain it by severer means. The
lenity of former ages was laid aside, and the divine
authority gave a sanction to the precepts of natural
justice, that whoever killed a murderer should be inno
cent. After tribunals were erected, the power over life
was, for the very best reasons, conferred upon the judges
alone. Still some traces of ancient manners remained in
the right which was granted, after the introduction of
the Mosaic Law, to the nearest in blood to the person
killed.
This interpretation is justified by the authority of
Abraham, who, with a perfect knowledge of the law given
to Noah, took arms against the four Kings, fully per
suaded that he was doing nothing in violation of that
law. In the same manner Moses ordered the people to
fight against Amalekites, who attacked them; following
in this case the dictates of nature, for he appears to have
had no special communication with God. Exod. xvii. 9.
* The author here alludes to the defilement or uncleanness which
the ancients thought was contracted by touching a man, who had
killed another, even innocently and lawfully. — Barbeyrac.
THE RIGHTS OF WAR AND PEACE 39
Besides, we find that capital punishments were inflicted
upon other criminals, as well as murderers, not only
among the Gentiles, but among those who had been im
pressed with the most pious rules and opinions, even the
Patriarchs themselves. Gen. xxxviii. 24.
Indeed upon comparing the divine will with the light
of nature, it was concluded, that it seemed conformable
to justice, that other crimes of great enormity should be
subject to the same punishment as that of murder. For
there are some rights, such as those of reputation,
chastity, conjugal fidelity, submission of subjects to their
princes, all of which are esteemed of equal value with
life itself, because on the preservation of these the peace
and comfort of life depend. The violation of any of
those rights is little less than murder itself.
Here may be applied the old tradition found among the
Jews, that there were many laws, which were not ALL
mentioned by Moses, given by God to the sons of Noah ;
as it was sufficient for his purpose, that they should
afterwards be comprehended in the peculiar laws of the
Hebrews. Thus it appears from xviii. chap, of Leviticus,
that there was an ancient law against incestuous mar
riages, though not mentioned by Moses in its proper
place. Now among the commandments given by God to
the children of Noah, it is said, that death was expressly
declared to be the punishment not only for murder, but
for adultery, incest, and robbery, which is confirmed by
the words of Job xxxi. n. The law of Moses too, for
the sanction of capital punishments, gives reasons which
operate no less with other nations, than with the Jewish
people. Levit. xviii. 25-30. Psa. ci. 5. Prov. xx. 8. And
particularly respecting murder it is said, the land cannot
be cleansed unless the blood of the murderer be shed.
Numb. xxv. 31-33. Besides, it were absurd to suppose
that the Jewish people were indulged with the privilege
of maintaining the public safety, and that of individuals
by capital punishments, and asserting their rights by war,
and that other kings and nations were not allowed the
same powers. Nor do we find that those kings or nations
were forewarned by the Prophets, that the use of capital
punishments, and that all wars, were condemned by God in
the same manner as they were admonished of all other sins.
On the other hand, can any one doubt, as the law of
Moses bore such an express image of the divine will re
specting criminal justice, whether other nations would
40 HUGO GROTIUS
not have acted wisely in adopting it for their example ?
It is certain that the Greeks, and the Athenians in par
ticular did so. From hence came the close resemblance
which the Jewish bore to the old Athenian law, and to
that of the twelve tables of Rome. Enough has been
said, to shew that the law given to Noah cannot bear the
interpretation of those, who derive from it their argu
ments against the lawfulness of all war.
VI. The arguments against the lawfulness of war,
drawn from the Gospel, are more specious. In examining
which it will not be necessary to assume, as many do,
that the Gospel contains nothing more than the law of
nature, except the rules of faith and the Sacraments: an
assumption, which in its general acceptation is by no
means true. It may readily be admitted, that nothing
inconsistent with natural justice is enjoined in the gospel,
yet it can never be allowed, that the laws of Christ do
not impose duties upon us, above those required by the
law of nature. And those, who think otherwise, strain
their arguments to prove that many practices forbidden
by the gospel, as concubinage, divorce, polygamy, were
made offences by the law of nature. The light of nature
might point out the HONOUR of abstaining from such
practices, but the SINFULNESS of them could not have been
discovered without a revelation of the will of God. Who
for instance would say, that the Christian precept of
laying down our lives for others was an obligation of the
law of nature ? i John iii. 16. It is said by Justin the
Martyr, that to live according to the bare law of nature
is not the character of a true believer. Neither can we
follow those, who, adopting another meaning of no incon
siderable import, construe the precept delivered by Christ
in his sermon on the mount, into nothing more than an
interpretation of the Mosaic Law. For the words, "you
have heard it was said to them of old, but I say to YOU,"
which are so often repeated, imply something else. Those
of old were no other than contemporaries of Moses: for
what is there repeated as said to those of OLD are not the
words of the teachers of the law, but of Moses, either
LITERALLY, or in THEIR meaning. They are cited by our
Saviour as his express words, not as interpretations of
them: <' Thou shalt not kill," Exod. xx. whoever killeth
shall be in danger of Judgment, Levit. xxi. 21. Numb,
xxxv. 1 6, 17, 30. (< Thou shalt not commit adultery,"
Exod. xx. <( whosoever shall put away his wife, let him
THE RIGHTS OF WAR AND PEACE 41
give her a writing of divorcement. }> Deut. xxiv, i.
(< Thou shalt not forswear thyself, but shalt perform unto
the Lord thine oaths. M Exod. xx. 7. Numb, xxx 2. « An
eye for an eye, and a tooth for a tooth, }> may be demanded
in justice. }> Levit. xxxiv. 20. Deut. xix. 21. <( Thou
shalt love thy neighbour, }> that is, an Israelite. Levit. xix.
1 8. (( and thou shalt hate thine enemy, ^ that is, any one
of the seven nations to whom friendship or compassion
was forbidden to be shewn. Exod. xxxiv. n. Deut.
vii. i. To these may be added the Amalekites, with
whom the Israelites were commanded to maintain irre-
concileable war. Exod. xxvii. 19. Deut. xxv. 19.
But to understand the words of our Saviour, we must
observe that the law of Moses is taken in a double sense,
either as containing some principles in common with hu
man laws, such as imposing restraint upon human crimes
by the dread of exemplary punishments. Heb. ii. 2. And
in this manner maintaining civil society among the Jew
ish people: for which reason it is called, Heb. vii. 16,
the law of a carnal commandment, and Rom. iii. 17. the
law of works: or it may be taken in another sense, com
prehending the peculiar sanctions of a divine law, re
quiring purity of mind, and certain actions, which might
be omitted without temporal punishments. In this sense
it is called a spiritual law, giving life to the soul. The
teachers of the law, and the Pharisees considering the
first part as sufficient, neglected to instruct the people
in the second and more important branch, deeming it
superfluous. The truth of this may be proved, not only
from our own writings, but from Josephus also, and the
Jewish Rabbies. Respecting this second part we may
observe, that the virtues which are required of Chris
tians, are either recommended or enjoined to the He
brews, but not enjoined in the same degree and extent
as to Christians. Now in both these senses Christ op
poses his own precepts to the old law. From whence it
is clear, that his words contain more than a bare inter
pretation of the Mosaic law. These observations apply
not only to the question immediately in hand, but to
many others; that we may not rest upon the authority
of the Mosaic law farther than is right.
VII. Omitting therefore the less satisfactory proofs, as
a leading point of evidence to shew that the right of
war is not taken away by the law of the gospel, that
passage in St. Paul's Epistle to Timothy may be referred
42 HUGO GROTIUS
to, where the Apostle says, <( I exhort therefore that,
first of all, supplications, prayers, intercessions, and giv
ing of thanks be made for all men; for Kings, and for
all that are in authority, that we may lead a quiet and
peaceable life, in all godliness and honesty; for this is
good and acceptable in the sight of God our vSaviour, who
would have all men to be saved, and to come to the
knowledge of the truth. }) i Eph. ii. i, 2, 3. From this
passage, the following conclusions may be drawn; in the
first place, that Christian piety in kings is acceptable to
God, that their profession of Christianity does not
abridge their rights of sovereignty. Justin the Martyr
has said, ((that in our prayers for Kings, we should beg
that they may unite a spirit of wisdom with their royal
power, >} and in the book called the Constitutions of
Clement, the Church prays for Christian rulers, and that
Christian Princes may perform an acceptable service to
God, by securing to other Christians the enjoyment of
quiet lives. The manner in which the Sovereign secures
this important end, is explained in another passage from
the same Apostle. Rom. xiii. 4. (( He is the minister of
God to thee for good. But if thou do evil, fear, for he
beareth not the sword in vain; for he is the minister of
God, an avenger to execute wrath upon them, that do
evil. }> By the right of the sword is understood the exer
cise of every kind of restraint, in the sense adopted by
the Lawyers, not only over offenders amongst his own
people, but against neighboring nations, who violate his
own and his people's rights. To clear up this point, we
may refer to the second Psalm, which although it ap
plies literally to David, yet in its more full and perfect
sense relates to Christ, which may be seen by consulting
other parts of scripture. For instance, Acts iv. 25. xiii.
33. For that Psalm exhorts all kings to worship the son
of God, shewing themselves, as kings, to be his minis
ters, which may be explained by the words of St. Au
gustine, who says, (< In this, kings, in their royal capacity,
serve God according to the divine commandment, if they
promote what is good, and prohibit what is evil in their
kingdoms, not only relating to human society, but also
respecting religion. >J And in another place the same
writer says, (( How can kings serve the Lord in fear,
unless they can prohibit and punish with due severity
offences against the law of God ? For the capacities in
which they serve God, as individuals, and as kings, are
THE RIGHTS OF WAR AND PEACE 43
very different. In this respect they serve the Lord, as
kings, when they promote his service by means which
they could not use without regal power.
The same part of the Apostle's writings supplies us
with a second argument, where the higher powers, mean
ing kings, are said to be from God, and are called the
ordinance of God ; from whence it is plainly inferred that
we are to honour and obey the king, from motives of
conscience, and that every one who resists him, is resist
ing God. If the word ordinance meant nothing more
than a bare permission, that obedience which the Apostle
so strenuously enjoins would only have the force of an
imperfect obligation. But as the word ordinance, in the
original, implies an express commandment and appoint
ment, and as all parts of the revealed will of God are
consistent with each other, it follows that the obedience
of subjects to sovereigns is a duty of supreme obligation.
Nor is the argument at all weakened by its being said,
that the Sovereigns at the time when St. Paul wrote,
were not Christians. For it is not tiniversally true, as
Sergius Paulus, the deputy governor of Cyprus, had long-
before professed the Christian religion. Acts xiii. 12.
There is no occasion to mention the tradition respecting
Abgarus the King of Edessa's Epistle to our Saviour; a
tradition mingled with falsehood, though, in some meas
ure founded upon truth. For the question did not turn
upon the characters of the Princes, whether they were
godly or not, but whether THEIR holding the kingly office
was repugnant to the law of God. This St. Paul denies,
maintaining that the kingly office, even under all cir
cumstances, was appointed by God, therefore it ought to
be honoured from motives of conscience, which, properly
speaking, are under the controul of God alone. So that
Nero, and King Agrippa whom Paul so earnestly entreats
to become a Christian, might have embraced Christian
ity, and still retained, the one his regal, and the other
his imperial authority, which could not be exercised
without the power of the sword. As the legal sacrifices
might formerly be performed by wicked Priests; in the
same manner regal power would retain its indelible
sanctity, though in the hands of an ungodly man.
A third argument is derived from the words of John
the Baptist, who, at a time when many thousands of the
Jews served in the Roman armies, as appears from the
testimony of Josephus and others, being seriously asked
44 HUGO GROTIUS
by the soldiers, what they should do to avoid the wrath
of God, did not command them to renounce their mili
tary calling", which he ought to have done, had it been
inconsistent with the law and will of God, but to abstain
from violence, extortion, and false accusation, and to be
content with their wages. In reply to these words of
the Baptist, so plainly giving authority to the military
profession, many observed that the injunction of the Bap
tist is so widely different from the precepts of Christ,
that HE seemed to preach one doctrine and our LORD
another. Which is by no means admissible, for the fol
lowing reasons. Both our Saviour and the Baptist made
repentance the substance of their doctrine ; for the king
dom of heaven was at hand. By the Kingdom of Heaven
is meant a new law, as the Hebrews used to give the name
of Kingdom to their law. Christ himself says the King
dom of Heaven began to suffer violence from the days
of John the Baptist. Matt. xi. 12. John is said to have
preached the baptism of repentance for the remission of
sins. Mark i. 4. The Apostles are said to have done the
same in the name of Christ. Acts xi. 38. John requires
fruits worthy of repentance, and threatens destruction to
those, who do not produce them. Matt. iii. 8, 10. He
also requires works of charity above the law. Luke iii. 2.
The law is said to have continued till John, that is, a
more perfect law is said to have commenced from his
instruction. He was called greater than the prophets,
and declared to be one sent to give the knowledge of
salvation to the people by announcing the gospel. He
makes no distinction between himself and Jesus on the
score of doctrine, only ascribing pre-eminence to Christ
as the promised Messiah, the Lord of the Kingdom of
Heaven, who would give the power of the holy spirit to
those, who believed in him. In short, the dawning rudi
ments of knowledge, which proceeded from the forerun
ner, were more distinctly unfolded and cleared up, by
Christ himself, the light of the world.
There is a fourth argument, which seems to have no
little weight, proceeding upon/ the supposition, that if the
right of inflicting capital punishments were abolished, and
princes were deprived of the power of the sword to pro
tect their subjects against the violence of murderers and
robbers, wickedness would triumphantly prevail, and the
world would be deluged with crimes, which, even under
the best established governments, are with so much diffi-
THE RIGHTS OF WAR AND PEACE 45
culty prevented or restrained. If then it had been the
intention of Christ to introduce such an order of things
as had never been heard of, he would undoubtedly by
the most express and particular words, have condemned
all capital punishments, and all wars, which we never
read that he did. For the arguments, brought in favor
of such an opinion, are for the most part very indefinite
and obscure. Now both justice and common sense require
stich general expressions to be taken in a limited accepta
tion, and allow us, in explaining ambiguous words, to
depart from their literal meaning, where our strictly
adhering to it would lead to manifest inconvenience and
detriment.
There is a fifth argument, maintaining that no proof
can be adduced that the judicial part of the Mosaic Law,
inflicting sentence of death, ever ceased to be in force,
till the city of Jerusalem, and the civil polity of the Jews
were utterly destroyed, without hopes of restoration. For
in the Mosaic dispensation no assignable term is named
for the duration of the law; nor do Christ and his
Apostles ever speak of its abolition, except in allusion
to the overthrow of the Jewish state. Indeed on the
contrary, St. Paul says, that the High Priest was ap
pointed to judge according to the law of Moses. Acts
xxiv. 3. And Christ himself, in the introduction to his
precepts, declares that he came not to destroy the law,
but to fulfil it. Matt. v. 17. The application of his
meaning to the ritual law is very plain, for it was only
the outline and shadow of that perfect body, of which
the Gospel formed the substance. But how is it possible
that the judicial laws should stand, if Christ, according
to the opinion of some, abolished them by his coming ?
Now if the law remained in force as long as the Jewish
state continued, it follows that the Jewish converts to
Christianity if called to the magisterial office, could not
refuse it on the score of declining to pass sentence of
death, and that they could not decide otherwise than the
law of Moses had prescribed.
Upon weighing the whole matter, the slightest ground
cannot be discovered for supposing that any pious man,
who had heard those words from our Saviour himself,
would have understood them in a sense different from that
which has been here given. It must however be admitted
that, before the Gospel dispensation permission or impunity
was granted to certain acts and dispositions, which it
46 HUGO GROTIUS
would neither be necessary nor proper to examine at
present, upon which Christ did not allow his followers to
act. Of this kind was the permission to put away a wife
for every offence, and to seek redress by law for every
injury. Now between the positive precepts of Christ and
those permissions there is a difference, but not a contra
diction. For he that retains his wife, and he that forgoes
his right of redress, does nothing CONTRARY to the law,
but rather acts agreeably to the SPIRIT of it. It is very
different with a judge, who is not merely permitted, but
commanded by the law to punish a murderer with death,
incurring guilt in the sight of God, if he should act other
wise. If Christ had forbidden him to put a murderer to
death, his prohibition would have amounted to a contra
diction, and it would have abolished the law.
The example of Cornelius the Centurion supplies a sixth
argument in favor of this opinion. In receiving the holy
spirit from Christ, he received an indubitable proof of his
justification ; he was baptized into the name of Christ by
Peter, yet we do not find that he either had resigned or
was advised by the Apostle to resign his military com
mission. In reply to which some maintain, that when
instructed by Peter in the nature of the Christian religion,
he must have been instructed to form the resolution
of quitting his military calling. There would be some
weight in their answer, if it could be shown that an
absolute prohibition of war is to be found among the pre
cepts of Christ. And as it can be found nowhere else,
it would have been inserted in its proper place among the
precepts of Christ, that after ages might not have been
ignorant of the rules of duty. Nor as may be seen in the
xix. chap, of the Acts of the Apostles and the iQth ver.
is it usual with St. Luke, in cases where the personal
character and situation or converts required an ex
traordinary change of life and disposition, to pass over
such a circumstance without notice.
The seventh argument is like the preceding, and is
taken from the example of Sergius Paulus, which has
been already mentioned. In the history of his conversion
there is not the least intimation of his abdicating the
magistracy, or being required to do so. Therefore silence
respecting a circumstance, which would naturally and
necessarily have been mentioned, may be fairly taken as
a proof that it never existed. The conduct of St. Paul
supplies us with an eighth argument on this subject.
THE RIGHTS OF WAR AND PEACE 47
When he understood that the Jews lay in wait for an op
portunity to seize and kill him, he immediately gave infor
mation of their design to the commander of the Roman
garrison, and when the commander gave him a guard of
soldiers to protect him on his journey, he made no remon
strance, nor ever hinted either to the commander or the
soldiers that it was displeasing to God to repel force by
force. Yet this is the same Apostle who, as appears from
all his writings, 2 Tim. iv. 2. neither himself neglected nor
allowed others to neglect any opportunity of reminding
men of their duty. In addition to all that has been said,
it may be observed, that the peculiar end of what is law
ful and binding, must itself be lawful and binding also.
It is lawful to pay tribute, and according to St. Paul's ex
planation, it is an act binding upon the conscience, Rom.
xiii. 3, 4, 6. For the end of tribute is to supply the state
with the means of protecting the good, and restraining the
wicked. There is a passage in Tacitus very applicable to
the present question. It is in the fourth book of his his
tory, in the speech of Petilius Cerealis, who says, <(the
peace of nations cannot be preserved without armies, nor
can armies be maintained without pay, nor pay supplied
without taxation. )} There is a sentiment similar to this
of the historian, in St. Augustin, he says, ((for this pur
pose we pay tribute, that the soldier may be provided
with the necessaries of life."
The tenth argument is taken from that part of the
xxv. chap, of the Acts of the Apostles, where Paul says,
(( If I have wronged any man, or done any thing worthy
of death, I refuse not to die." From whence the opin
ion of St. Paul may be gathered, that, even after the
publication of the gospel, there were certain crimes which
justice not only allowed but required to be punished with
death ; which opinion St. Peter also maintains. But if it
had been the will of God that capital punishments should
be abolished, Paul might have cleared himself, but he
ought not to have left an impression on the minds of
men, that it was at that time equally lawful as before
to punish the guilty with death. Now as it has been
proved, that the coming of Christ did not take away the
right of inflicting capital punishments, it has at the same
time been proved, that war may be made upon a multi
tude of armed offenders, who can only be brought to
justice by defeat in battle. The numbers, the strength
and boldness of the aggressors, though they may have
48 HUGO GROTIUS
their weight in restraining our deliberations, cannot in
the least diminish our right.
The substance of the eleventh argument rests not only
upon our Saviour's having abolished those parts of the
Mosaic law, which formed a wall of separation between
the Jews and other nations, but upon his allowing the
moral parts to remain, as standing rules, approved by the
law of nature, and the consent of every civilized people,
and containing whatever is good and virtuous.
Now the punishing of crimes, and the taking up arms
to avenge or ward off injuries are among those actions,
which by the law of nature rank as laudable, and are
referred to the virtues of justice and beneficence. And
here is the proper place to animadvert slightly upon the
mistake of those, who derive the rights of war, possessed
by the Israelites, solely from the circumstance of God
having given them the land of Canaan and commissioned
them to drive out the inhabitants. This may be one just
reason, but it is not the sole reason.
For, prior to those times, holy men guided by the
light of nature undertook wars, which the Israelites them
selves afterwards did for various reasons, and David in
particular, to avenge the violated rights of ambassadors.
But the rights, which any one derives from the law of
nature, are no less his own than if God had given
them: nor are those rights abolished by the law of the
Gospel.
VIII. Let us now consider the arguments, by which
the contrary opinion is supported, that the pious reader
may judge more easily, to which side the scale inclines.
In the first place, the prophecy of Isaiah is generally
alleged, who says the time shall come, (< when nations
shall beat their swords into plow-shares, and turn their
spears into pruning hooks. Nation shall not lift up
sword against nation, neither shall they learn war any
more. }> ii. 4. But this prophecy, like many others, is to
be taken conditionally, alluding to the state of the world
that would take place, if all nations would submit to the
law of Christ, and make it the rule of life, to which
purpose God would suffer nothing to be wanting on his
part. For it is certain, that if all people were Christians,
and lived like Christians, there would be no wars, which
Arnobius expresses thus, (( If all men, knowing that it is
not their corporeal form alone which makes them men,
but the powers of the understanding, would lend a patient
THE RIGHTS OF WAR AND PEACE 49
ear to his salutary and pacific instructions, if they would
trust to his admonitions rather than to the swelling pride
and turbulence of their senses, iron would be employed
for instruments of more harmless and useful operations,
the world enjoy the softest repose and be united in the
bands of inviolable treaties." On this subject Lactantius,
reproaching the Pagans with the deification of their con
querors, says, <( what would be the consequence, if all men
would unite in concord ? Which might certainly be
brought to pass, if, abandoning ruinous and impious rage,
they would live in justice and innocence. w Or this pas
sage of the prophecy must be understood literally, and,
if taken in that sense, it shews that it is not yet ful
filled, but its accomplishment must be looked for in the
general conversion of the Jewish people. But, which
ever way you take it, no conclusion can be drawn from
it against the justice of war, as long as violent men
exist to disturb the quiet of the lovers of peace.*
IX. In examining the meaning of written evidence,
general custom, and the opinions of men celebrated for
their wisdom have usually great weight ; a practice which
it is right to observe in the interpretation of holy scrip
ture. For it is not likely that the churches, which had
been founded by the Apostles, would either suddenly or
universally have swerved from those opinions, which the
Apostles had briefly expressed, in writing, and afterwards
more fully and clearly explained to them with their own
lips, and reduced to practice. Now certain expressions of
the primitive Christians are usually alleged by those who
are adverse to all wars, whose opinions may be considered
and refuted in three points of view.
In the first place, from these expressions nothing more
can be gathered than the private opinions of certain
individuals, but no public opinion of the Churches. Besides
these expressions for the most part are to be found only
in the writings of Origen, Tertullian and some few others,
who wished to distinguish themselves by the brilliancy
of their thoughts, without regarding consistency in their
opinions. For this same Origen says, that Bees were
given by God as a pattern for men to follow in conduct
ing just, regular, and necessary wars; and likewise Ter-
tulian, who in some parts seems to disapprove of capital
* The remainder of this section is omitted, Grotius himself stating it
to be only a repetition and enlargement of his arguments immediately
preceding it. (Translator. )
4
So HUGO GROTIUS
punishments, has said, <( No one can deny that it is good
the guilty should be punished. w He expresses his doubts
respecting the military profession, for in his book upon
idolatry, he says, it is a fit matter of inquiry, whether
believers can take up arms, or whether any of the mili
tary profession can be admitted as members of the Chris
tian Church. But in his Book entitled, the SOLDIER'S
CROWN, after some objections against the profession of
arms, he makes a distinction between those who are en
gaged in the army before baptism, and those who entered
after they had made the baptismal vow. <( It evidently,
says he alters the case with those who were soldiers before
their conversion to Christianity; John admitted them to
baptism, in one instance Christ approved, and in another
Peter instructed a faithful Centurion : yet with this stipu
lation, that they must either like many others, relinquish
their calling, or be careful to do nothing displeasing to
God. >} He was sensible then that they continued in the
military profession after baptism, which they would by
no means have done, if they had understood that all
war was forbidden by Christ. They would have followed
the example of the Soothsayers, the Magi, and other pro
fessors of forbidden arts, who ceased to practice them,
when they became Christians. In the book quoted above,
commending a soldier, who was at the same time a
Christian, he says, (( O Soldier glorious in God. }>
The second observation applies to the case of those,
who declined or even refused bearing arms, on account
of the circumstances of the times, which would have re
quired them to do many acts inconsistent with their
Christian calling. In Dolabella's letter to the Ephesians,
which is to be found in Josephus, we see that the Jews
requested an exemption from military expeditions, be
cause, in mingling with strangers, they could not con
veniently have observed the rites of their own laws and
would have been obliged to bear arms, and to make long
marches on the Sabbaths. And we are informed by
Josephus that, for the same reasons, the Jews obtained
their discharge of L. Lentulus. In another part, he re
lates that when the Jews had been ordered to leave the
city of Rome, some of them inlisted in the army, and
that others, who out of respect to the laws of their coun
try, for the reasons before mentioned, refused to bear
arms, were punished. In addition to these a third rea
son may be given, which was that they would have to
THE RIGHTS OF WAR AND PEACE 51
fight against their own people, against whom it was un
lawful to bear arms, especially when they incurred dan
ger and enmity for adhering to the Mosaic law. But
the Jews, whenever they could do it, without these in
conveniences, served under foreign princes, previously
stipulating, as we are informed by Josephus, for liberty
to live according to the laws and rules of their own
country. Tertullian objects to the military service of his
own times on account of dangers, and inconveniences very
similar to those, which deterred the Jews. In his book on
Idolatry, he says, <( it is impossible to reconcile the oath of
fidelity to serve under the banners of Christ, with that
to serve under the banners of the Devil. }> Because the
soldiers were ordered to swear by Jupiter, Mars, and the
other Heathen Gods. And in his book on the Soldier's
Crown, he asks, ((if the soldier be to keep watch before
the temples, which he has renounced, to sup where he is
forbidden by the Apostle, and to guard in the night the
Gods, whom he has abjured in the day ? >J And he pro
ceeds with asking, <( if there be not many other military
duties, which ought to be regarded in the light of sins ? w
The third point of view, in which the subject is to be
considered, relates to the conduct of those primitive
Christians, who, in the ardour of zeal, aimed at the
most brilliant attainments, taking the divine counsels for
precepts of obligation. The Christians, says Athenagoras,
never go to law with those, who rob them.
Salvian says, it was commanded by Christ that we
should relinquish the object of dispute, rather than en
gage in law suits. But this, taken in so general an ac
ceptation, is rather by the way of counsel, in order to
attain to a sublimer mode of life, than intended as a
positive precept. Thus many of the primitive Fathers
condemned all oaths without exception, yet St. Paul, in
matters of great importance, made use of these solemn
appeals to God. A Christian in Tatian said, <( I refuse
the office of Praetor, w and in the words of Tertullian, <( a
Christian is not ambitious of the Aedile's office. w In the
same manner Lactantius maintains that a just man, such
as he wishes a Christian to be, ought not to engage in
war, nor, as all his wants can be supplied at home, even
to go to sea. How many of the primitive fathers dis
suade Christians from second marriages ? All these
counsels are good, recommending excellent attainments,
highly acceptable to God, yet they are not required of
52 HUGO GROTIUS
us, by any absolute law. The observations already made
are sufficient to answer the objections derived from the
primitive times of Christianity.
Now in order to confirm our opinions, we may observe
that they have the support of writers, even of greater
antiquity, who think that capital punishments may be
inflicted, and that wars, which rest upon the same author
ity, may be lawfully engaged in by Christians. Clem
ens Alexandrinus says, that ((a Christian, if, like Moses,
he be called to the exercise of sovereign power, will be
a living law to his subjects, rewarding the good, and pun
ishing the wicked. }> And, in another place, describing
the habit of a Christian, he says, <(it would become him
to go barefoot, unless he were a soldier. >J In the work
usually entitled the CONSTITUTIONS OF CLEMENS ROMANUS,
we find that (< it is not all killing which is considered
unlawful, but only that of the innocent; yet the admin
istration of judicial punishments must be reserved to the
supreme power alone. w But without resting upon indi
vidual authorities, we can appeal to the public authority
of the church which ought to have the greatest weight.
From hence it is evident that none were ever refused
baptism, or excommunicated by the church, merely for
bearing arms, which they ought to have been, had the
military profession been repugnant to the terms of the
new covenant. In the CONSTITUTIONS just quoted,
the writer speaking of those who, in the primitive times,
were admitted to baptism, or refused that ordinance,
says, (( let a soldier who desires to be admitted be taught
to forbear from violence, and false accusations, and to be
content with his regular pay. If he promises obedience
let him be admitted. }) Tertullian in his Apology, speak
ing in the character of Christians, says, (<We sail along
with you, and we engage in the same wars," having a
little before observed, <( we are but strangers, yet we
have filled all your cities, your islands, your castles, your
municipal towns, your councils, and even your camps. w
He had related in the same book that rain had been ob
tained for the Emperor Marcus Aurelius by the prayers
of the Christian soldiers.* In his book of the crown, he
commends a soldier, who had thrown away his garland,
for a courage superior to that of his brethren in arms,
*Grotius does not vouch for the truth of this assertion, but only
quotes the passage to shew there were CHRISTIANS in the army of
Marcus Aurelius.
THE RIGHTS OF WAR AND PEACE 53
and informs us that he had many Christian fellow sol
diers.
To these proofs may be added the honours of Martyr
dom given by the Church to some soldiers, who had been
cruelly persecuted, and had even suffered death for the sake
of Christ, among whom are recorded three of St. Paul's
companions, Cerialis who suffered martyrdom under
Decius; Marinus under Valerian; fifty under Aurelian,
Victor, Maurus, and Valentiiius, a lieutenant general
under Maximian. About the same time Marcellus the
Centurion, vSeverian under Licinius. Cyprian, in speaking
or Laurentirius, and Ignatius, both Africans, says, (( They
too served in the armies of earthly princes, yet they were
truly spiritual soldiers of God, defeating the wiles of the
Devil by a steady confession of the name of Christ, and
earning the palms and crowns of the Lord by their
sufferings. }> And from hence it is plain what wras the
general opinion of the primitive Christians upon war,
even before the Emperors became Christians.
It need not be thought surprising, if the Christians of
those times wTere unwilling to appear at trials for life,
since, for the most part, the persons to be tried were
Christians. In other respects too, besides being unwilling
to witness the unmerited sufferings of their persecuted
brethren, the Roman laws were more severe than Chris
tian lenity could allow of, as may be seen from the single
instance of the Silanian decree of the Senate.* Indeed
capital punishments were not abolished even after Con-
stantine embraced and began to encourage the Christian
religion. He himself among other laws enacted one
similar to that of the ancient Romans, for punishing
parricides, by sewing them in a sack with certain animals,
and throwing them into the sea, or the nearest river.
This law is to be found in his code under the <( title of
the murders of parents or children. » Yet in other respects
he was so gentle in punishing criminals, that he is blamed
by many historians for his excessive lenity. Constantine,
we are informed by historians, had at that time many
* By the Silanian decree of the Senate, it was ordered that if a master
happened to be murdered in his own house, all the slaves under the
same roof should be put to death ; even though no proof appeared of
their being concerned in the murder. We have an example of the case
in Tacitus. Annal. v. xiv. ch. xlii. The Emperor Adrian softened the
rigour of that decree, by ordering that only they should be exposed to
the rack, who were near enough to have heard some noise. Spartian,
Life of Adrian, ch. xviii.
54 HUGO GROTIUS
Christians in his army, and he used the name of Christ
as the motto upon his standards. From that time too
the military oath was changed to the form, which is
found in Vegetius, and the soldier swore, <( By God, and
Christ, and the holy spirit, and the majesty of the
Emperor, to whom as next to God, homage and rever
ence are due from mankind. >} Nor out of so many Bishops
at that time, many of whom suffered the most cruel
treatment for their religion, do we read of a single one,
who dissuaded Constantine, by the terrors of divine wrath
from inflicting capital punishments, or prosecuting wars,
or who deterred the Christians, for the same reasons,
from serving in the armies. Though most of those
Bishops were strict observers of discipline, who would by
no means dissemble in points relating to the duty of the
Emperors or of others. Among this class, in the time
of Theodosius, we may rank Ambrose, who in his seventh
discourse says, <( there is nothing wrong in bearing arms ;
but to bear arms from motives of rapine is a sin indeed,"
and in his first book cf Offices, he maintains the same
opinion, that (( the courage which defends one's country
against the incursions of barbarians, or protects one's
family and home from the attacks of robbers, is complete
justice. }> These arguments so decidedly shew the opinions
of the primitive Christians in the support of just and
necessary war, that the subject requires no farther proof
or elucidation.
Nor is the argument invalidated by a fact pretty gen
erally known, that Bishops and other Christians often
interceded in behalf of criminals, to mitigate the pun
ishment of death, and that any, who had taken refuge
in churches, were not given up, but upon the promise of
their lives being spared. A custom was introduced like
wise of releasing all prisoners about the time of Easter.
But all these instances, if carefully examined, will be
found the voluntary acts of Christian kindness, embrac
ing every opportunity to do good, and not a settled point
of public opinion condemning all capital punishments.
Therefore those favours were not universal; but limited
to times and places, and even the intercessions them
selves were modified with certain exceptions.*
*As Grotius has so fully established his argument, it is unneces
sary to review his answer to further objections. — (TRANSLATOR.)
CHAPTER III.
THE DIVISION OF WAR INTO PUBLIC AND PRIVATE AND
THE NATURE OF SOVEREIGN POWER.
The Division of War into public and private — Examples to prove
that all private War is not repugnant to the Law of Nature since
the erection of Courts of Justice — The Division of Public War into
formal, and informal — Whether the suppression of Tumults by
subordinate Magistrates be properly public War — Civil Power, in
what it consists — 'Sovereign Power further considered — The opinion
of those, who maintain that the Sovereign Power is always in the
people, refuted, and their arguments answered — Mutual subjection
refuted — Cautions requisite to understand the nature of Sovereign
Power — Distinction of the real differences that exist under similar
names — Distinction between the right to Sovereign Power, and the
mode of exercising it.
i. THE first and most necessary divisions of war are
into one kind called private, another public, and another
mixed. Now public war is carried on by the person
holding the sovereign power. Private war is that which
is carried on by private persons without authority from
the state. A mixed war is that which is carried on, on
one side by public authority, and on the other by private
persons. But private war, from its greater antiquity, is
the first subject for inquiry.
The proofs that have been already produced, to shew that
to repel violence is not repugnant to natural law, afford
a satisfactory reason to justify private war, as far as the
law of nature is concerned. But perhaps it may be
thought that since public tribunals have been erected,
private redress of wrongs is not allowable. An objection
which is very just. Yet although public trials and courts
of justice are not institutions of nature, but erected by
the invention of men, yet as it is much more conducive
to the peace of society for a matter in dispute to be de
cided by a disinterested person, than by the partiality
and prejudice of the party aggrieved, natural justice and
reason will dictate the necessity and advantage of every
one's submitting to the equitable decisions of public
judges. Paulus, the Lawyer, observes that « what can be
done by a magistrate with the authority of the state,
(55)
56 HUGO GROTIUS
should never be intrusted to individuals; as private re
dress would give rise to greater disturbance. And (< the
reason, says King Theodoric, why laws were invented,
was to prevent any one from using personal violence,
for wherein would peace differ from all the confusion of
war, if private disputes were terminated by force?'* And
the law calls it force for any man to seize what he thinks
his due, without seeking a legal remedy.
II. It is a matter beyond all doubt that the liberty of
private redress, which once existed, was greatly abridged
after courts of justice were established. Yet there may
be cases, in which private redress must be allowed, as
for instance, if the way to legal justice were not open.
For when the law prohibits any one from redressing his
own wrongs, it can only be understood to apply to cir
cumstances where a legal remedy exists. Now the ob
struction in the way to legal redress may be either
temporary or absolute. Temporary, where it is impossible
for the injured party to wait for a legal remedy, without
imminent danger and even destruction. As for instance,
if a man were attacked in the night, or in a secret place
where no assistance could be procured. Absolute, either
as the right, or the fact may require. Now there are
many situations, where the right must cease from the
impossibility of supporting it in a legal way, as in un
occupied places, on the seas, in a wilderness, or desert
island, or any other place, where there is no civil gov
ernment. All legal remedy too ceases by fact, when sub
jects will not submit to the judge, or if he refuses
openly to take cognizance of matters in dispute. The
assertion that all private war is not made repugnant to
the law of nature by the erection of legal tribunals, may
be understood from the law given to the Jews, wherein
God thus speaks by the mouth of Moses, Exod. xxii. 2.
(< If a thief be found breaking up, that is, by night, and
be smitten that he dies, there shall no blood be shed for
him, but if the sun be risen upon him, there shall be
blood shed for him w Now this law, making so accurate
a distinction in the merits of the case, seems not only to
imply impunity for killing any one, in self-defence, but
to explain a natural right, founded not on any special
divine command, but on the common principles of jus
tice. From whence other nations have plainly followed
the same rule. The passage of the twelve tables is well
known, undoubtedly taken from the old Athenian Law,
THE RIGHTS OF WAR AND PEACE 57
<(I£ a thief commit a robbery in the night, and a man
kill him, he is killed lawfully. » Thus by the laws of all
known and civilized nations, the person is judged inno
cent, who kills another, forcibly attempting or endanger
ing his life; a conspiring and universal testimony, which
proves that in justifiable homicide, there is nothing re
pugnant to the law of nature.
IV.* Public war, according to the law of nations, is
either SOLEMN, that is FORMAL, or LESS SOLEMN, that is
INFORMAL. The name of lawful war is commonly given
to what is here called formal, in the same sense in which
a regular will is opposed to a codicil, or a lawful marriage
to the cohabitation of slaves. This opposition by no means
implies that it is not allowed to any man, if he pleases,
to make a codicil, or to slaves to cohabit in matrimony,
but only, that, by the civil law, FORMAL WILLS and SOLEMN
MARRIAGES, were attended with peculiar privileges and
effects. These observations were the more necessary;
because many, from a misconception of the word just or
lawful, think that all wars, to which those epithets do not
apply, are condemned as unjust and unlawful. Now to
give a war the formality required by the law of nations,
two things are necessary. In the first place it must be
made on both sides, by the sovereign power of the state,
and in the next place it must be accompanied with cer
tain formalities. Both of which are so essential that one
is insufficient without the other.
Now a public war, LESS SOLEMN, may be made without
those formalities, even against private persons, and by any
magistrate whatever. And indeed, considering the thing
without respect to the civil law, every magistrate, in case
of resistance, seems to have a right to take up arms, to
maintain his authority in the execution of his office; as well
as to defend the people committed to his protection. But
as a whole state is by war involved in danger, it is an
established law in almost all nations that no war can be
made but by the authority of the sovereign in each state.
There is such a law as this in the last book of Plato ON
LAWS. And by the Roman law, to make war, or levy
troops without a commission from the Prince was high
treason. According to the Cornelian law also, enacted by
Lucius Cornelius Sylla, to do so without authority from
* As the topics of the third section have been so fully stated in the
second chapter, that section has been omitted, and the translation goes
on from the second of the original to the fourth. (Translator.)
58 HUGO GROTIUS
the people amounted to the same crime. In the code of
Justinian there is a constitution, made by Valentinian
and Valens, that no one should bear arms without their
knowledge and authority. Conformably to this rule, St.
Augustin says, that as peace is most agreeable to the
natural state of man, it is proper that Princes should have
the sole authority to devise and execute the operations of
war. Yet this general rule, like all others, in its appli
cation must always be limited by equity and discretion.
In certain cases this authority may be communicated to
others. For it is a point settled beyond all doubt that
subordinate magistrates may, by their officers, reduce a
few disobedient and tumultuous persons to subjection,
provided, that to do it, it requires not a force of such
enormous magnitude as might endanger the state. Again,
if the danger be so imminent as to allow of no time for
an application to the sovereign executive power, here too
the necessity is admitted as an exception to the general
rule. Lucius Pinarius the Governor of Enna, a Sicilian
garrison, presuming upon this right, upon receiving cer
tain information that the inhabitants had formed a con
spiracy to revolt to the Carthaginians, put them all to
the sword, and by that means saved the place. Francis-
cus Victoria allows the inhabitants of a town to take up
arms, even without such a case of necessity, to redress
their own wrongs, which the Prince neglects to avenge,
but such an opinion is justly rejected by others.
V. Whether the circumstances, under which subordi
nate magistrates are authorised to use military force, can
properly be called public war or not, is a matter of dis
pute among legal writers, some affirming and others de
nying it. If indeed we call no other public war, but that
which is made by magisterial authority, there is no doubt
but that such suppressions of tumult are public wars,
and those who in such cases resist the magistrate in the
execution of his office, incur the guilt of rebellion against
superiors. But if public war is taken in the higher sense
of FORMAL war, as it undoubtedly often is; those are not
public wars; because to entitle them to the full rights of
such, the declaration of the sovereign power and other
requisites are wanting. Nor do the loss of property and
the military executions, to which the offenders are sub
ject, at all affect the question.* For those casualties are
* In case of rebellion, the subjects taken in arms, have no right to be
treated as prisoners of war, but are liable to punishment as criminals.
THE RIGHTS OF WAR AND PEACE 59
not so peculiarly attached to formal war, as to be ex
cluded from all other kinds. For it may happen, as in
an extensive empire for instance, that persons in subor
dinate authority, may, when attacked, or threatened with
attack, have powers granted to commence military opera
tions. In which case the war must be supposed to com
mence by the authority of the sovereign power; as a
person is considered to be the author of a measure which
by virtue of his authority he empowers another to per
form. The more doubtful point is, whether, where there
is no such commission, a conjecture of what is the will
of the sovereign power be sufficient. This seems not ad
missible. For it is not sufficient to consider, what we
suppose would be the Sovereign's pleasure, if he were
consulted; but what would be his actual will, in matters
admitting of time for deliberation, even though he were
not formally consulted; if a law was to be passed upon
those matters. <( For though UNDER SOME PARTICULAR CIR
CUMSTANCES, it may be necessary to waive consulting the
will of the sovereign, yet this would by no means au
thorise it as a GENERAL PRACTICE. For the safety of the
state would be endangered, if subordinate powers should
usurp the right of making war at their discretion. It was
not without reason, that Cneus Manlius was accused by
his Lieutenants of having made war upon the Galatians
without authority from the Roman people. For though
the Galatians had supplied Antiochus with troops, yet as
peace had been made with him, it rested with the Roman
people, and not with Manlius to determine in what man
ner the Galatians should be punished for assisting an
enemy. Cato proposed that Julius Caesar should be de
livered up to the Germans for having attacked them in
violation of his promise, a proposal proceeding rather
from the desire to be rid of a formidable rival, than
from any principle of justice.
The case was thus; the Germans had assisted the
Gauls, enemies of the Roman people, therefore they had
no reason to complain of the injury done to them, if
the war against the Gauls, in which they had made
themselves a party concerned, was just. But Caesar ought
to have contented himself with driving the Germans out
of Gaul, the province assigned him, without pursuing
them into their own country, especially as there was no
farther danger to be apprehended from them; unless he
had first consulted the Roman people. It was plain, then,
60 HUGO GROTIUS
the Germans had no right to demand the surrender of
Caesar's person, though the Romans had a right to pun
ish him for having exceeded his commission. On a
similar occasion the Carthaginians answered the Romans;
(( It is not the subject of inquiry whether Hannibal has
besieged Saguntum, by his own private or by public author
ity, but whether justly or unjustly. For with respect to
one of our own subjects it is our business to inquire by
what authority he has acted; but the matter of dis
cussion with you is, whether he has broken any treaty. }>
Cicero defends the conduct of Octavius and Decimus
Brutus, who had taken up arms against Antony. But
though it was evident that Antony deserved to be treated
as an enemy, yet they ought to have waited for the
determination of the Senate and people of Rome, whether
it were for the public interest not to take notice of his
conduct or to punish it, to agree to terms of peace
with him, or to have recourse to arms. This would have
been proper; for no one is obliged to exercise the right
of punishing an enemy, if it is attended with probable
danger.
But even if it had been judged expedient to declare
Antony an enemy, the choice of the persons to conduct
the war should have been left to the Senate and people
of Rome. Thus when Cassius demanded assistance of
the Rhodians, according to treaty, they answered they
would send it, if the senate thought proper. This refu
tation of Cicero's opionion will serve, along with many
other instances to be met with; as an admonition not to
be carried away by the opinions of the most celebrated
writers, particularly the most brilliant orators, who often
speak to suit the circumstances of the moment. But all
political investigation requires a cool and steady judg
ment, not to be biased by examples, which may rather
be excused than vindicated.
Since then it has already been established that no war
can lawfully be made but by the sovereign power of
each state, in respect to all the questions connected with
war, it will be necessary to examine what that sovereign
power is, and who are the persons that hold it.
VI. The moral power then of governing a state, which
is called by Thucydides the civil power, is described as
consisting of three parts which form the necessary sub
stance of every state ; and those are the right of making
its own laws, executing them in its own manner, and
THE RIGHTS OF WAR AND PEACE 61
appointing its own magistrates. Aristotle, in the fourth
book of his Politics, comprises the sovereignty of a state
in the exercise of the deliberative, executive, and judicial
powers. To the deliberative branch he assigns the right
of deciding upon peace or war, making or annulling
treaties, and framing and passing new laws. To these
he adds the power of inflicting death, banishment, and
forfeiture, and of punishing also for public peculation.
In the exercise of judicial power, he includes not only
the punishment of crimes and misdemeanors, but the
redress of civil injuries.* Dionysius of Halicarnassus,
points out three distinguishing marks of sovereign power;
and those are, the right of appointing magistrates, the
right of enacting and repealing laws, and the right of
making war and peace. To which, in another part, he
adds the administration of justice, the supreme authority
in matters of religion, and the right of calling general
councils.
A true definition comprehends every possible branch
of authority that can grow out of the possession and
exercise of sovereign power. For the ruler of every state
must exercise his authority either in person, or through
the medium of others. His own personal acts must be
either general or special. He may be said to do GENERAL
acts in passing or repealing laws, respecting either tem
poral matters, or spiritual concerns, as far as the latter
relate to the welfare of the state. The knowledge of
these principles is called by Aristotle the masterpiece in
the science of government.
The particular acts of the Sovereign are either di
rectly of a public nature, or a private, but even the lat
ter bear reference to his public capacity. Now the acts
of the sovereign executive power of a directly public kind
are the making of peace and war and treaties, and the im
position of taxes, and other similar exercises of authority
over the persons and property of its subjects, which con
stitute the sovereignty of the state. Aristotle calls the
knowledge of this practice political and deliberative
science.
*(< Wrongs are divisible into two sorts or species, PRIVATE WRONGS,
and PUBLIC WRONGS. The former are an infringement or privation of the
private or civil rights belonging to individuals, considered as individuals,
and are therefore frequently termed civil injuries ; the latter are a breach
and violation of public rights and duties which affect the whole com
munity considered as a community, and are distinguished by the harsher
appellation of crimes and misdemeanors. » — Blackst. Com. b. iii c. i.
62 HUGO GROTIUS
The private acts of the sovereign are those, in which
by his authority, disputes between individuals are decided,
as it is conducive to the peace of society that these should
be settled. This is called by Aristotle the judicial power.
Thus the acts of the sovereign are done in his name by
his magistrates or other officers, among whom ambassa-
dors are reckoned. And in the exercise of all those rights
sovereign power consists.
VII. That power is called sovereign, whose actions are
not subject to the controul of any other power, so as to be
annulled at the pleasure of any other human will. The
term ANY OTHER HUMAN WILL exempts the sovereign him
self from this restriction, who may annul his own acts, as
may also his successor, who enjoys the same right, hav
ing the same power and no other. We are to consider
then what is the subject in which this sovereign power
exists. Now the subject is in one respect common, and in
another proper, as the body is the common subject of
sight^ the eye the proper, so the common subject of
sovereign power is the state, which has already been said
to be a perfect society of men.
Now those nations, who are in a state of subjugation
to another power, as the Roman provinces were, are ex
cluded from this definition. For those nations are not
sovereign states of themselves, in the present acceptation
of the word; but are subordinate members of a great
state, as slaves are members of a household. Again it
happens that many states, forming each an independent
body, may have one head. For political are not like
natural bodies, to only one of which the same head can
belong. Whereas in the former, one person can exercise
the function of the head to many distinct bodies. As a
certain proof of which, when the reigning house has be
come extinct, the sovereign power returns to the hands
of the nation. So it may happen, that many states may
be connected together by the closest federal union, which
Strabo, in more places than one calls a system, and yet
each retain the condition of a perfect, individual state,
which has been observed by Aristotle and others in dif
ferent parts of their writings. Therefore the common
subject of sovereign power is the state, taken in the
sense already explained. The proper subject is one or
more persons according to the laws and customs of each
nation. This is called by Galen in the sixth book DE
PLACITIS HIFPOCRAT ET PLATONis, the first power of the state.
THE RIGHTS OF WAR AND PEACE 63
VIII. And here is the proper place for refuting the
opinion of those, who maintain that, every where and
without exception, the sovereign power is vested in the
people, so that they have a right to restrain and punish
kings for an abuse of their power. However there is no
man of sober wisdom, who does not see the incalculable
mischiefs, which such opinions have occasioned, and may
still occasion; and upon the following grounds they may
be refuted.
From the Jewish, as well as the Roman. Law, it appears
that any one might engage himself in private servitude
to whom he pleased. Now if an individual may do so,
why may not a whole people, for the benefit of better
government and more certain protection, completely trans
fer their sovereign rights to one or more persons, with
out reserving any portion to themselves ? Neither can it
be alledged that such a thing is not to be presumed, for
the question is not, what is to be presumed in a doubtful
case, but what may lawfully be done. Nor is it any more
to the purpose to object to the inconveniences, which
may, and actually do arise from a people's thus surrender
ing their rights. For it is not in the power of man to
devise any form of government free from imperfections
and dangers. As a dramatic writer says, (( you must either
take these advantages with those imperfections, or resign
your pretensions to both.'*
Now as there are different ways of living, some of a
worse, and some of a better kind, left to the choice of
every individual; so a nation, (< under certain circum
stances, WHEN for instance, the succession to the throne
is extinct, or the throne has by any other means become
vacant, w may chuse what form of government she pleases.
Nor is this right to be measured by the excellence of this
or that form of government, on which there may be varie
ties of opinion, but by the will of the people.
There may be many reasons indeed why a people may
entirely relinquish their rights, and surrender them to
another: for instance, they may have no other means of
securing themselves from the danger of immediate de
struction, or under the pressure of famine it may be the
only way, through which they can procure support. For
if the Campanians, formerly, when reduced by necessity
surrendered themselves to the Roman people in the fol
lowing terms : — (r Senators of Rome, we consign to your
dominion the people of Campania, and the city of Capua,
64 HUGO GROTIUS
our lands, our temples, and all things both divine and
human, )} and if another people as Appian relates, offered
to submit to the Romans, and were refused, what is there
to prevent any nation from submitting in the same man
ner to one powerful sovereign ? It may also happen that
a master of a family, having large possessions, will suffer
no one to reside upon them on any other terms, or an
owner, having many slaves, may give them their liberty
upon condition of their doing certain services, and paying
certain rents ; of which examples may be produced. Thus
Tacitus, speaking of the German slaves, says, <( Each has
his own separate habitation, and his own household to
govern. The master considers him as a tenant, bound to
pay a certain rent in corn, cattle, and wearing apparel.
And this is the utmost extent of his servitude. w
Aristotle, in describing the requisites, which fit men
for servitude, says, that (< those men, whose powers are
chiefly confined to the body, and whose principal excel
lence consists in affording bodily service, are naturally
slaves, because it is their interest to be so. }) In the same
manner some nations are of such a disposition that they
are more calculated to obey than to govern, which seems
to have been the opinion which the Cappadocians held of
themselves, who when the Romans offered them a popu
lar government, refused to accept it, because the nation
they said could not exist in safety without a king. Thus
Philostratus in the life of Apollonius, says, that it was
foolish to offer liberty to the Thracians, the Mysians, and
the Getae, which they were not capable of enjoying. The
example of nations, who have for many ages lived happily
under a kingly government, has induced many to give
the preference to that form. Livy says, that the cities
under Eumenes would not have changed their condition
for that of any free state whatsoever. And sometimes a
state is so situated, that it seems impossible it can pre
serve its peace and existence, without submitting to the
absolute government of a single person, which many wise
men thought to be the case with the Roman Republic in
the time of Augustus Caesar. From these, and causes
like these it not only may, but generally does happen,
that men, as Cicero observes in the second book of his
offices, willingly submit to the supreme authority of
another.
Now as property may be acquired by what has been
already styled just war, by the same means the rights of
THE RIGHTS OF WAR AND PEACE 65
sovereignty may be acquired. Nor is the term sovereignty
here meant to be applied to monarchy alone, but to gov
ernment by nobles, from any share in which the people
are excluded. For there never was any government so
purely popular, as not to require the exclusion of the
poor, of strangers, women, and minors from the public
councils. Some states have other nations under them, no
less dependent upon their will, than subjects upon that
of their sovereign princes. From whence arose that ques
tion, Are the Collatine people in their own power ? And
the Campanians, when they submitted to the Romans, are
said to have passed under a foreign dominion. In the
same manner Acarnania and Amphilochia are said to have
been under the dominion of the Aetolians; Peraea and
Caunus under that of the Rhodians ; and Pydna was ceded
by Philip to the Olynthians. And those to\vns, that had
been under the Spartans, when they were delivered from
their dominion, received the name of the free Laconians.
The city of Cotyora is said by Xenophon to have belonged
to the people of Sinope. Nice in Italy, according to
Strabo, was adjudged to the people of Marseilles ; and the
island of Pithecusa to the Neapolitans. We find in Fron-
tinus, that the towns of Calati and Caudium with their
territories were adjudged, the one to the colony of Capua,
and the other to that of Beneventum. Otho, as Tacitus
relates, gave the cities of the Moors to the Province of
Baetia. None of these instances, any more than the
cessions of other conquered countries could be admitted,
if it were a received rule that the rights of sovereigns
are under the controul and direction of subjects.
Now it is plain both from sacred and profane history,
that there are kings, who are not subject to the controul
of the people in their collective body; God addressing
the people of Israel, says, if thou shalt say, « I will
place a king over me » ; and to Samuel « Shew them the
manner of the king, who shall reign over them. }> Hence
the King is said to be anointed over the people, over
the inheritance of the Lord, over Israel. Solomon is
styled King over all Israel. Thus David gives thanks to
God, for subduing the people under him. And Christ
says, <(the Kings of the nations bear rule over them.0
There is a well known passage in Horace, (( Powerful
sovereigns reign over their own subjects, and the supreme
being over sovereigns themselves. w Seneca thus describes
the three forms of government, <( Sometimes the supreme
5
66 HUGO GROTIUS
power is lodged in the people, sometimes in a senate
composed of the leading men of the state, sometimes
this power of the people, and dominion over the people
themselves is vested in a single person." Of the last
description are those, who, as Plutarch says, exercise
authority not according to the laws, but over the laws.
And in Herodutus, Otanes describes a monarch as one
whose acts are not subject to controul. Dion Prusaeensis
also and Pausanias define a monarchy in the same
terms.
Aristotle says there are some kings, who have the
same right, which the nation elsewhere possesses over
persons and property. Thus when the Roman Princes
began to exercise regal power, the people it was said
had transferred all their own personal sovereignty to
them, which gave rise to the saying of Marcus Antoninus
the Philosopher, that no one but God alone can be judge
of the Prince. Dion. L. liii. speaking of such a prince,
says, (( he is perfectly master of his own actions, to do
whatever he pleases, and cannot be obliged to do any
thing against his will." Such a-nciently was the power
of the Inachidae established at Argos in Greece. For in
the Greek Tragedy of the Suppliants, Aeschylus has
introduced the people thus addressing the King : (< You
are the state, you the people; you the court from
which there is no appeal, you preside over the altars,
and regulate all affairs by your supreme will." King
Theseus himself in Euripides speaks in very different
terms of the Athenian Republic ; <( The city is not gov
erned by one man, but in a popular form, by an annual
succession of magistrates." For according to Plutarch's
explanation, Theseus was the general in war, and the
guardian of the laws; but in other respects nothing more
than a citizen. So that they who are limited by popular
controul are improperly called kings. Thus after the
time of Lycurgus, and more particularly after the insti
tution of the Ephori, the Kings of the Lacedaemonians
are said by Polybius, Plutarch, and Cornelius Nepos, to
have been Kings more in name than in reality. An ex
ample which was followed by the rest of Greece. Thus
Pausanias says of the Argives to the Corinthians, <c The
Argives from their love of equality have reduced their
kingly power very low; so that they have left the pos
terity of Cisus nothing more than the shadow of Kings."
Aristotle denies such to be proper forms of government,
THE RIGHTS OF WAR AND PEACE 67
because they constitute only a part of an Aristocracy or
Democracy.
Examples also may be found of nations, who have not
been under a perpetual regal form, but only for a time
under a government exempt from popular controul. Such
was the power of the Amimonians among the Cnidians,
and of the Dictators in the early periods of the Roman
history, when there was no appeal to the people, from
whence Livy says, the will of the Dictator was observed
as a law. Indeed they found this submission the only
remedy against imminent danger, and in the words of
Cicero, the Dictatorship possessed all the strength of royal
power.
It will not be difficult to refute the arguments brought
in favour of the contrary opinion. For in the first place
the assertion that the constituent always retains a con
troul over the sovereign power, which he has contributed
to establish, is only true in those cases where the con
tinuance and existence of that power depends upon the
will and pleasure of the constituent: but not in cases
where the power, though it might derive its origin from
that constituent, becomes a necessary and fundamental
part of the established law. Of this nature is that author
ity to which a woman submits when she gives herself to a
hUvSband. Valentinian the Emperor, when the soldiers
who had raised him to the throne, made a demand of
which he did not approve, replied; (( Soldiers, your elec
tion of me for your emperor was your own voluntary
choice; but since you have elected me, it depends upon
my pleasure to grant your request. It becomes you to
obey as subjects, and me to consider what is proper to
be done.»
Nor is the assumption true, that all kings are made by
the people, as may be plainly seen from the instances
adduced above, of an owner admitting strangers to re
side upon his demesnes on condition of their obedience,
and of nations submitting by right of conquest. An
other argument is derived from a saying of the Philoso
phers, that all power is conferred for the benefit of the
governed and not of the governing party. Hence from
the nobleness of the end, it is supposed to follow, that
subjects have a superiority over the sovereign. But it is
not universally true, that all power is conferred for the
benefit of the party governed. For some powers are
conferred for the sake of the governor, as the right of a
68 HUGO GROTIUS
master over a slave, in which the advantage of the latter
is only a contingent and adventitious circumstance. In
the same manner the gain of a Physician is to reward
him for his labour; and not merely to promote the good
of his art. There are other kinds of authority estab
lished for the benefit of both parties, as for instance, the
authority of a husband over his wife. Certain govern
ments also, as those which are gained by right of conquest,
may be established for the benefit of the sovereign ; and
yet convey no idea of tyranny, a word which in its origi
nal signification, implied nothing of arbitrary power or
injustice, but only the government or authority of a
Prince. Again, some governments may be formed for
the advantage both of subjects and sovereign, as when a
people, unable to defend themselves, put themselves un
der the protection and dominion of any powerful king.
Yet it is not to be denied, but that in most governments
the good of the subject is the chief object which is re
garded: and that what Cicero has said after Herodotus,
and Herodotus after Hesiod, is true, that Kings were
appointed in order that men might enjoy complete justice.
Now this admission by no means goes to establish the
inference that kings are amenable to the people. For
though guardianships were invented for the benefit of
wards, yet the guardian has a right to authority over the
ward. Nor, though a guardian may for mismanagement
be removed from his trust, does it follow that a king may
for the same reason be deposed. The cases are quite
different, the guardian has a superior to judge him; but
in governments, as there must be some dernier resort, it
must be vested either in an individual, or in some public
body, whose misconduct, as there is no superior tribunal
before which they can be called, God declares that he
himself will judge. He either punishes their offences,
should he deem it necessary; or permits them for the
chastisement of his people.
This is well expressed by Tacitus : he says, (< you should
bear with the rapacity or luxury of rulers, as you would
bear with drought, or excessive rains, or any other calam
ities of nature. For as long as men exist there will be
faults and imperfections; but these are not of uninter
rupted continuance, and they are often repaired by the
succession of better times. }> And Marcus Aurelius speak
ing of subordinate magistrates, said, that they were under
the controul of the sovereign: but that the sovereign was
THE RIGHTS OF WAR AND PEACE 69
amenable to God. There is a remarkable passage in
Gregory of Tours, where that Bishop thus addresses the
King of France, (< If any of us, Sir, should transgress the
bounds of justice, he may be punished by you. But if
you exceed them, who can call you to account ? For when
we address you, you may hear us if you please; but if
you will not, who can judge you, except him, who has
declared himself to be righteousness ? }) Among the max
ims of the Essenes, Porphyry cites a passage, that (<no
one can reign without the special appointment of divine
providence. w Irenaeus has expressed this well, <( Kings are
appointed by him at whose command men are created;
and their appointment is suited to the condition of those,
whom they are called to govern.-0 There is the same
thought in the Constitutions of Clement, (< You shall fear
the King, for he is of the Lord's appointment. ):>
Nor is it an objection to what has been said, that some
nations have been punished for the offences of their
kings; for this does not happen, because they forbear to
restrain their kings, but because they seem to give, at
least a tacit consent to their vices, or perhaps, without
respect to this, God may use that sovereign power which
he has over the life and death of every man to inflict
a punishment upon the king by depriving him of his
subjects.
IX. There are some who frame an imaginary kind of
mutual subjection, by which the people are bound to
obey the king, as long as he governs well; but his
government is subject to their inspection and controul.
If they were to say that his duty to the sovereign does
not oblige any one to do an act manifestly unjust and
repugnant to the law of God; they would say nothing
but what is true and universally admitted, but this by
no means includes a right to any controul over the
Prince's conduct in his lawful government. But if any
people had the opportunity of dividing the sovereign
power with the king, the privileges of the one, and the
prerogatives of the other ought to be defined by certain
bounds, which might easily be known, according to the
difference of places, persons, or circumstances.
Now the supposed good or evil of any act, especially
in political matters which admit of great variety of
opinions and much discussion, is not a sufficient mark
to ascertain these bounds. From whence the greatest
confusion must follow, if under pretence of promoting
70 HUGO GROTIUS
good or averting evil measures, the people might
struggle for the Prince's jurisdiction: a turbulent state
of affairs, which no sober minded people ever wished to
experience.
X. After refuting false opinions, it remains to apply
some cautions, which may point out the way to ascertain
correctly the person to whom sovereign power, in every
state, of right belongs. The first caution necessary is to
avoid being deceived by ambiguous terms, or appear
ances foreign to the real subject. For instance, among
the Latins, although the terms PRINCIPALITY and KINGDOM
are generally opposed to each other, when Caesar says,
that the father of Vercingetorix held the principality of
Gaul, and was put to death for aiming at sovereign power ;
and when Piso, in Tacitus calls Germanicus the son of a
Roman Prince, not of a Parthian King; and when Sue
tonius says, that Caligula was on the point of converting
the power of a prince into that of a king; and Velleius
asserts that Maroboduus not contented with the authority
of a prince over voluntary adherents and dependents,
was grasping in his mind at regal power; yet we find
these terms though in reality very distinct were often
confounded. For the Lacedaemonian chiefs, the descend
ants of Hercules, though subject to the controul of the
Ephori, were nevertheless called kings: and Tacitus says,
that among the ancient Germans there were kings, who
governed more by the influence of persuasion than by the
authority of power. Livy too, speaking of king Evander,
describes him as reigning more by personal authority
than by his regal power; and Aristotle, Polybius, and
Diodorus give the names of Kings to the Suffetes or
Judges of the Carthaginians. In the same manner Solinus
also calls Hanno King of the Carthaginians. Strabo
speaks of Scepsis in Troas, that having incorporated the
Milesians into the state, it formed itself into a Democracy,
leaving the descendants of the ancient kings the title, and
something of the dignity of kings.
On the other hand, the Roman emperors, after they
had exercised openly, and without any disguise, a most
absolute monarchical power, were notwithstanding called
Princes. And in some popular states the chief magis
trates are graced with ensigns of royalty.
Again the states general, that is the convention of
those who represent the people, divided into classes ac
cording to Gunther, consist of three orders, which are
THE RIGHTS OF WAR AND PEACE 71
the Prelates, the Nobles, and Deputies of large towns.
In some places, they serve as a greater council to the
king, to communicate to him the complaints of his people,
which might otherwise be kept from his ears; leaving
him at the same time full liberty to exercise his own
discretion upon the matters so communicated. But in
other places they form a body with power to inquire
into the prince's measures, and to make laws.
Many think that in order to know whether a prince be
sovereign or not, it is proper to inquire whether his title
to the crown is by election or inheritance. For they
maintain that hereditary monarchies alone are sovereign.
But this cannot be received as a general criterion. For
sovereignty consists not merely in the TITLE to the
throne, which only implies that the successor has a right
to all the privileges and prerogatives that his ancestors
enjoyed, but it by no means affects the nature or extent
of his powers. For right of election conveys all the
powers, which the first election or appointment conferred.
Among the Lacedaemonians the crown was hereditary
even after the institution of the Ephori. And Aristotle
describing the chief power of such a state, says, <( Of
these kingdoms, some are hereditary, and others elective. }>
In the heroic times most of the kingdoms in Greece were
of this description, as we are informed by Thucydides.
The Roman empire, on the contrary, even after the power
of the Senate and people was abolished, was given or
confirmed by election.
XI. Another caution is necessary. For to inquire into
the matter of a right is not the same thing as to examine
the nature of its tenure. A distinction which takes place
not only in corporeal but in incorporeal possessions. For
a right of passage or carriage through a ground is no less
a right than that which entitles a man to the possession
of the land itself. Now some hold these privileges by a
full right of property, some by an usufructuary, and
others by a temporary right. Thus the Roman Dictator
had sovereign power by a temporary right. In the same
manner kings, both those who are the first of their line
elected to the throne, and those who succeed them in the
lawful order, enjoy an usufructuary right, or inalienable
right. But some sovereigns hold their power by a
plenary right of property; when for instance it comes
into their possession by the right of lawful conquest, or
when a people, to avoid greater evils, make an unquali-
72 HUGO GROTIUS
fied surrender of themselves and their rights into their
hands.
The opinion of those can never be assented to, who say
that the power of the Dictator was not sovereign, because
it was not permanent. For in the moral world the nature
of things is known from their operations. The powers
attended with equal effects are entitled to equal names.
Now the Dictator for the time being performed all acts
with the same authority as the most absolute sovereign;
nor could any other power annul his acts. The perma
nence therefore of uncertainty alters not the nature of a
right, although it would undoubtedly abridge its dignity,
and diminish its splendour.*
*The translation proceeds from hence to the second book of the
original, which seems to follow this part without any material break
in the chain of argument: the intermediate sections relating to in
stances in the Roman Republic, which do not directly apply to the
practice of modern governments. — TRANSLATOR.
BOOK II.
CHAPTER I.
DEFENCE OF PERSON AND PROPERTY.
Causes of War — Defence of person and property— What are called justifi
able causes of war — Justifiable causes of War are Defence, recovery
of one's property or debt, or the punishment of offences committed —
War for defence of life, justifiable, and lawful — This kind of war law
ful against an aggressor only — The danger must be present and real,
not an imaginary danger — Lawful to kill any one attempting to maim
one's person, or violate one's chastity — Occasions where this right
may be lawfully waved— \This right to be waved particularly with
respect to the person of the Sovereign, which is sacred and inviola-
bler-r-Homicide in defence of one's property allowed by the law of
nature — How far homicide is permitted by the law of Moses — Self-
defence in public war — Not lawful to attack any power solely on
account of its increasing greatness — The hostile measures of an ag
gressor, not to be justified on the plea of self-defence.
I. THE causes of war by which are meant the justifiable
causes, are now to be considered. For in some cases
motives of interest operate distinctly from motives of jus
tice. Polybius accurately distinguishes these motives from
each other, and from the beginning of the war, or that
which gave occasion to the first acts of hostility; as was
the case when Ascanius wounded the stag, which gave
rise to the war between Turnus and Aeneas. But though
there is an actual distinction between the justifiable causes,
the pretexts, and the beginning of war; yet the terms
used to express them are often confounded. For what
we call justifiable causes, Livy, in the speech which he
has put into the mouth of the Rhodians, calls beginnings.
The Rhodian deputies said, (( You Romans profess' to be
lieve that your wars are successful, because they are just ;
nor do you boast so much of their victorious issue, as of
the just principles, upon which you make them." In
which sense Aelian styles them tipxasnole/jLcov and Diodorus
Siculus, in speaking of the war of the Lacedaemonians
against the Eleans gives them the name of n/w^aoet? and
(73)
74 HUGO GROTIUS
The principal drift of our argument rests upon these
justifiable causes, to which the sentiment of Coriolanus
in Dionysius of Halicarnassus, particularly applies, he
says, (( in the first place, I beseech you to consider how
you may find pious and just pretexts for the war. }> And
Demosthenes in his second Olynthiac, makes a similar
observation, <( I think, says he, that as in a ship, or house,
or any other fabric, the lowest parts ought to be the
strongest; so in all political measures the motives and
pretexts ought to be laid deeply in the principles of truth
and justice. }> The following language of Dion Cassius is
no less applicable to the question. <( Justice must be
made the principal ground of our actions. For with such
support there is the best hope of success to our arms.
But without that, any point which may be gained for the
moment has no firm ground to rest upon." To which
may be added, the words of Cicero, who maintains those
wars to be unjust, which are made without sufficient
cause. And in another place, he reproves Crassus for
having intended to pass the Euphrates, when there was
no cause of war. Which is no less true of public than
of private wars. Hence come the complaints of Seneca,
(C Why do we restrain homicide, and the murder of in
dividuals, but glory in the crime of slaughter, which
destroys whole nations ? Avarice and cruelty know not
any bounds. By decrees of the Senate, and of the people
cruel acts are authorized, and measures, which are pur
sued by order of the state, are forbidden to individuals. >}
Wars indeed undertaken by public authority are attended
with certain effects of right, and have the sanction of
opinion in their favour. But they are not the less
criminal, when made without just cause. For which rea
son Alexander was not improperly styled a robber by the
Scythian ambassadors, as may be seen in Quintus Curtius.
Seneca and Lucan give him the same appellation; the
Indian sages call him a madman; and a pirate once pre
sumed to rank him with his own class. Justin speaks of
Philip in the same terms, who, says he, in deciding a
dispute between two rival kings, stripped both of their
dominions with all the treachery and violence of a rob
ber. Augustin has a pertinent remark on this subject.
He says, what are unjustly acquired dominions, but the
spoils of robbery ? In the same strain, Lactantius says,
<(Men, captivated with the appearances of vain glory, give
the names of virtues to their crimes. }) Injury, or the
THE RIGHTS OF WAR AND PEACE 75
prevention of injury forms the only justifiable cause of
war. <(And, in tJie language of tlic same Augustin, all
the evil consequences of war are to be laid at the door
of the aggressor. J) Thus the Roman Herald in a decla
ration of war makes a solemn appeal against the aggressor,
as having violated the laws of nations, and refused proper
satisfaction.
II. The grounds of war are as numerous as those of ju
dicial actions. For where the power of law ceases, there
war begins. Now there are methods in law to prevent
intended injuries, as well as actions for those actually
committed. For CIVIL INJURIES various methods of re
dress, or prevention are appointed by the law; and by
the same power securities are provided to prevent the
commission of crimes and misdemeanors. In civil cases,
the party aggrieved may recover damages for the injuries
sustained; and in crimes, which are offences against the
public, the aggressor must submit to actual punishment.
Plato, in his ninth book on laws, very properly makes
the same distinction, as Homer had done before him.
Now reparation or indemnity relates to what either
does or did belong to us; which gives rise to real and
personal actions. These ascertain our right to the dam
ages, which are our due, either from an agreement, or
from an injury received. A right which is termed in
law a right by contract, or injury. Crimes, which are
offences against society, are prosecuted by indictment,
that is by an accusation in the name of the sovereign.
The justifiable causes generally assigned for war are
three, defence, indemnity, and punishment, all which are
comprised in the declaration of Camillus against the
Gauls, enumerating all things, which it is right to defend,
to recover, and the encroachment on which it is right to
punish.
There is an omission in this enumeration, unless the
word recover be taken in its most extensive sense. For
recovering by war what we have lost, includes indemnity
for the past, as well as the prosecution of our claim to
a debt. Plato has not omitted to notice this distinction,
for he has said, C( that wars are made to punish not only op
pression or robbery, but also fraud and deception. a With
whom Seneca agrees; for to command payment of what
you owe, he calls, <( an equitable sentence, stamped with
the authority of the law of nations. >J Indeed the form
which was prescribed for the Roman heralds to use in
76 HUGO GROTIUS
declarations of war, bears exactly the same import. For
therein the aggressor is charged with having neither
given, paid, nor done what was due. Salhist in one of
his fragments, has made a Tribune, in his harangue to
the people, say, (( As a final settlement of all discussions,
I demand restitution according to the law of nations. }>
St. Augustin, in defining those to be just wars, which
are made to avenge injuries has taken the word avenge
in a general sense of removing and preventing, as well
as punishing aggressions. This appears to be his mean
ing from the following sentence of the passage, in which
he does not enumerate the particular acts, which amount
to injury, but adds, by way of illustration, that <(the state
or nation, which has neglected to punish the aggressions
of its own subjects, or to make reparation for the losses
occasioned by those aggressions, is a proper object of
hostility and attack. w Prompted by this natural knowledge
of right and wrong, the Indian King, as we are informed
by Diodorus, accused Semiramis of having commenced
war against him without having received any injury.
Thus the Romans expostulated with the the Senones,
that they ought not to attack a people who had given
them no provocation. Aristotle in the second book and
second chapter of his Analytics, says, war generally is
made upon those who have first done an injury. Quintus
Curtius describes the Abian Scythians, as the best ac
quainted with the principles of justice of any of the
Barbarians. For they declined having recourse to arms,
unless provoked by aggression. A just cause then of war
is an injury, which though not actually committed,
threatens our persons or property with danger.
III. It has already been proved that when our lives
are threatened with immediate danger, it is lawful to kill
the aggressor, if the danger cannot otherwise be avoided:
an instance, as it has been shewn, on which the justice of
private war rests. We must observe that this kind of
defence derives its origin from the principle of self-
preservation, which nature has given to every living
creature, and not from the injustice or misconduct of the
aggressor. Wherefore though he may be clear of guilt,
as for instance a soldier in actual service, mistaking my
person for that of another, or a madman in his frenzy,
or a man walking in his sleep, none of these cases de
prive me of the right of self-defence against those per
sons. For I am not bound to submit to the danger or
THE RIGHTS OF WAR AND PEACE 77
mischief intended, any more than to expose myself to
the attacks of a wild beast.
IV. It admits of some doubt, whether those, who un
intentionally obstruct our defence, or escape, which are
necessary to OUT preservation, may be lawfully maimed
, or killed. There are some, even Theologians, who think
they may. And, certainly if we look to the law of na
ture alone, according to its principles, our own preserva
tion should have much more weight with us, than the
welfare of society. But the law of charity, especially
the evangelical law, which has put our neighbour upon
a level with ourselves, does not permit it.
Thomas Aquinas, if taken in a right sense, has justly
observed, that in actual self-defence no man can be said
to be purposely killed. Indeed, it may some times hap
pen that there is no other way for a person to save him
self, than by designedly doing an act, by which the
death of an aggressor must inevitably ensue. Yet here
the death of any one was not the primary object in
tended, but employed as the only means of security,
which the moment supplied. Still it is better for the
party assaulted, if he can safely do it, to repel or disable
the aggressor than to shed his blood.
V. The danger must be immediate, which is one nec
essary point. Though it must be confessed, that when
an assailant seizes any weapon with an apparent intention
to kill me I have a right to anticipate and prevent the
danger. For in the moral as well as the natural system
of things, there is no point without some breadth. But
they are themselves much mistaken, and mislead others,
who maintain that any degree of fear ought to be a
ground for killing another, to prevent his SUPPOSED in
tention. It is a very just observation made by Cicero
in his first book of Offices, that many wrongs proceed
from fear; as when the person, who intends to hurt an
other, apprehends some danger to himself unless he took
that method. Clearchus, in Xenophon, says, I have known
some men, who partly through misrepresentation, and
partly through suspicion, dreading one another, in order
to prevent the supposed intentions of their adversaries,
have committed the most enormous cruelties against those
who neither designed, nor wished them any harm.
Cato in his speech for the Rhodians, says, (< Are we to
prevent them by doing first, what we say they intended
to do to us ? w On this subject there is a remarkable
78 HUGO GROTIUS
passage in Aulus Gellius, (< When a Gladiator prepares to
enter the lists for combat, such is his lot that he must
either kill his adversary, or be killed himself. But the
life of man is not circumscribed by the hard terms of
such an over-ruling necessity, as to oblige him to do an
injury to prevent him from receiving one." Quintilian
has quoted a passage from Cicero, wherein the orator
asks, (( Whoever made such a decision, or to whom could
such a point be yielded without the most imminent
danger, that you have a right to kill the person, by
whom you say, you fear that you shall afterwards be
killed yourself ? >} To which this passage of Euripides,
may be applied, (< If your husband, as you say, intended
to have killed you, you ought to have waited, till he
actually did make the attempt. )} Conformably to which
Thucydidcs, in the first book of his history, has expressed
himself in the following terms, <( The issue of war is tin-
certain, nor ought we to be so far transported by our
fears, as to engage in immediate and open hostilities. }>
The same writer too in his luminous description of the
dangerous factions, that had arisen in the Grecian states,
condemns the approbation bestowed on the person, that
injured or destroyed another from whom he himself ap
prehended injury or destruction. })
Livy says, (( Men, to guard against their alarms, make
themselves objects of terror; averting the danger from
their own heads, by imposing upon others the necessity
of either doing or suffering the evil which they them
selves fear. }> Vibius asked a person, that appeared
armed in the forum, (< Who gave you permission to shew
your fear in this manner ? " A question not inapplicable
to the present subject, and much commended by Quin
tilian. Livia also in Dion says, that great infamy re
dounds to those, who by anticipation perpetrate the
criminal act, which they fear.
Now if any one intend no immediate violence, but is
found to have formed a conspiracy to destroy me by
assassination, or poison, or by false accusation, perjury,
or suborned witnesses, I have no right to kill him. For
my knowledge of the danger may prevent it. Or even
if it were evident that I could not avoid the danger
without killing him; this would not establish my right
to do so. For there is every presumption that my know
ing it will lead me to apply for the legal remedies of
prevention.
THE RIGHTS OF WAR AND PEACE 79
VI. and VII. The next thing to be considered is, what
must be said upon the mutilation of a limb. NOW, as
the loss of a limb, especially that of a principal limb in
the body, is a grievous detriment, and nearly equal to the
loss of life, to which may be added the probability of
death ensuing from such a calamity; the lawfulness of
killing any one, who makes such an attempt, if the dan
ger cannot otherwise be avoided, scarce admits of a
doubt. Neither is there any more difficulty in allowing
the same right for the personal defence of chastity, the
preservation of which, both in the common estimation of
men, and by the divine law, is deemed of equal value
with life itself. We have an example of this in Cicero,
Quintilian, and Plutarch, in the person of one of Marius's
tribunes, who was killed by a soldier. Among the actions
of women, who have defended themselves. Heliodorus
records that of Heraclea, which he calls a just defence of
her injured honour.
VIII. Though some, as it has been already said, admit
the lawfulness of killing the person, who attempts with
open violence to destroy one's life, yet they deem it
more commendable to spare the life of another, even at
the hazard of one's own. Yet to persons, in whose pres
ervation the public interest is involved, they will grant
an exemption from this rule of forbearance. Indeed it
seems unsafe to impose upon ANY, whose lives are of
importance to others, a rule of forebearance so contrary
to all the principles of all law. This exemption therefore
must be allowed to all vested with any public office,
which makes them responsible for the safety of others;
as the generals who conduct armies, or the rulers of the
state, and many others in similar situations; to whom
may be applied the lines of Lucan — <( When the lives and
safety of so many nations depend upon yours, and
so great a portion of the world has chosen you for
its head; it is cruelty to expose yourself wilfully to
death. »
IX. On the other hand it may happen, that the aggres
sor may be one whose person is rendered sacred and in
violable by all divine, human, and natural laws; which is
the case with respect to the person of the Sovereign.
For the law of nature regards not only the principles of
STRICT JUSTICE, but comprises other virtues also, as tem
perance, fortitude, and discretion, making the observance
of them in certain cases, binding as well as honourable.
8o HUGO GROTIUS
To observe these we are bound also by the law of
charity.
Nor is the truth of this argument at all weakened by
what Vasquez has advanced, who maintains that the Sov
ereign who attempts the life of an individual loses, in
reality, the character of Sovereign: a doctrine fraught
with equal absurdity and danger. For sovereignty can
not any more than property be forfeited by any particular
act of delinquency; unless it has been previously and ex
pressly so enacted by the fundamental laws of the state.
For such a rule of forfeiture, which would be productive
of universal anarchy and confusion, never has been, nor
ever will be established among any civilized people. For
the maxim, (( that all government is framed for the bene
fit of the subject and not of the Sovereign," which
Vasquez and many other writers lay down as a funda
mental law, though it may be generally true in theory, is
by no means applicable to the question. For a thing
loses not its existence, by losing some part of its utility.
Nor is there sufficient consistency in his observation, that
every individual desires the safety of the commonwealth
on his own account, and therefore every one ought to pre
fer his own safety to that of the whole state. For we wish
for the public welfare not on our own account alone, but
also for the sake of others.
The opinion of those who think that friendship arises
from necessity alone, is rejected, as false, by the more
sound Philosophers ; as we feel a spontaneous and natural
inclination towards friendly intercourse. Charity indeed
often persuades, and in some instances commands us to
prefer the good of many to our own single advantage.
To which the following passage from Seneca is very ap
plicable. <( It is not surprising that princes, and kings,
or whatever name the guardians of the public welfare
may bear, should be loved with a veneration and affection,
far beyond those of private friendship. For all men of
sober judgment, and enlarged information deem the
public interest of higher moment than their own. Their
attachment therefore must be warmest to the person on
whom the well being and prosperity of the state depends. *
And to the same effect, St. Ambrose in his third book
of Offices, says, (<every man feels a greater delight in avert
ing public than private danger. }> Seneca, the writer
already quoted, produces two instances, the one of Callis-
tratus at Athens, and the other of Rutilius at Rome,
THE RIGHTS OF WAR AND PEACE 81
who refused to be restored from banishment thinking- it
better for two individuals to suffer hardship, than for
the public to be plunged into calamities.
XI. * The next object to be considered, relates to
injuries affecting our property. In strict justice, it can
not be denied that we have a right to kill a robber, if
such a step is inevitably necessary to the preservation of
our property. For the difference between the value of
life and property is overbalanced by the horror which a
robber excites, and by the favourable inclination felt by
all men towards the injured and innocent. From whence
it follows, that regarding that right alone, a robber may
be wounded or killed in his flight with the property, if it
cannot otherwise be recovered. Demosthenes in his
speech against Aristocrates, exclaims, <( By all that is
sacred, is it not a dreadful and open violation of law,
not only of written law, but of that law which is the un
written rule of all men, to be debarred from the right of
using force against the robber as well as against the
enemy; who is plundering your property ?w Nor is it
forbidden by the precepts of charity, apart from all con
sideration of divine and human law, unless where the
property is of little value, and beneath notice ; an excep
tion, which some writers have very properly added.
XII. The sense of the Jewish law on this point is now
to be considered. The old law of Solon, to which
Demosthenes, in his speech against Timocrates, appeals,
agrees with it. From hence the substance of the TWELVE
TABLES, and Plato's maxim in his ninth book of laws
were taken. For they all agree in making a distinction
between a thief who steals by day, and the robber, who
commits the act by night; though they differ about the
REASON of this distinction. Some think this distinction
arises from the difficulty of discerning by night,
whether an aggressor conies with an intent to murder
or steal, and therefore he ought to be treated as an
assassin. Others think the distinction is made, because
as it is difficult to know the person of the thief, there
is less probability of recovering the goods. In neither
case do the framers of laws seem to have considered
the question in its proper light. Their evident intention
is to prohibit the killing of any one, merely on account
* The tenth section is omitted in the translation ; as the subject
of Christian forbearance of which it treats, has already been discussed
in the preceeding book. — TRANSLATOR.
82 HUGO GROTIUS
of our property; which would happen, for instance, by
killing a thief in his flight in order to recover the goods
he had stolen. But if our own lives are endangered,
then we are allowed to avert the danger, even at the
hazard of another's life. Nor is our having run into the
danger any objection ; provided it was done to preserve
or to recover our goods, or to take the thief. For no
imputation of guilt can attach to us in any of these
cases, while we are employed in doing a lawful act, nor
can it be said that we are doing wrong to another by
exercising our own right.
The difference therefore made between a thief in the
night and a thief in the day, arises from the difficulty
of procuring sufficient evidence of the fact. So that if
a thief is found killed, the person who says, that he was
found by him with a destructive weapon, and killed by
him in his own defence, will easily gain belief. For the
Jewish law supposes this, when it treats of a thief in
the act of piercing, or, as some translate it, with a
stabbing instrument. This interpretation accords with
the law of the twelve tables, which forbids any one to
kill a thief in the day time, except he defend himself
with a weapon. The presumption therefore against a
thief in the night is that he defended himself in such a
manner. Now the term weapon comprehends not only
an instrument of iron, but as Caius interprets this law,
a club, or a stone. Ulpian on the other hand, speaking
of a thief taken in the night, says that the person who
kills him will incur no guilt, provided that in saving
his property he could not spare his life, without en
dangering his own. There is a presumption, as it has
been already observed, in favour of the person who has
killed a thief taken in the night. But if there be evi
dence to prove, that the life of the person who killed
the thief was in no danger; then the presumption in his
favour fails, and the act amounts to murder.
The law of the twelve tables indeed required, that the
person who took a thief either in the day time, or in the
night, should make a noise that, if possible, the magis
trates or neighbours might assemble to assist him and
give evidence. But as such a concourse could more easily
be assembled in the day time than in the night, as Ulpian
observes upon the passage before quoted from Demos
thenes, the affirmation of a person declaring the danger
he was in during the night is more readily believed. To
THE RIGHTS OF WAR AND PEACE 83
which an additional observation may be made, that, even
under equal circumstances, the danger which happens by
night can be less examined, and ascertained, and there
fore is the more terrible. The Jewish law therefore, no
less than the Roman, acting upon the same principle of
tenderness forbids us to kill any one, who has taken our
goods, unless for the preservation of our own lives.
XVI.* What has been already said of the right of de
fending our persons and property, though regarding
chiefly private war, may nevertheless be applied to public
hostilities, allowing for the difference of circumstances.
For private war may be considered as an instantaneous
exercise of natural right, which ceases the moment that
legal redress can be obtained. Now as public war can
never take place, but where judicial remedies cease to
exist, it is often protracted, and the spirit of hostility
inflamed by the continued accession of losses and injuries.
Besides, private war extends only to self-defence, whereas
sovereign powers have a right not only to avert, but to
punish wrongs. From whence they are authorised to
prevent a remote as well as an immediate aggression.
Though the suspicion of hostile intentions, on the part
of another power, may not justify the commencement of
actual war, yet it calls for measures of armed prevention,
and will authorise indirect hostility. Points, which will
be discussed in another place.
XVII. Some writers have advanced a doctrine which
can never be admitted, maintaining that the law of nations
authorises one power to commence hostilities against
another, whose increasing greatness awakens her alarms.
As a matter of expediency such a measure may be adopted,
but the principles of justice can never be advanced in its
favour. The causes which entitle a war to the denom
ination of just are somewhat different from those of expe
diency alone. But to maintain that the bare probability
of some remote, or future annoyance from a neighbour
ing state affords a just ground of hostile aggression, is a
doctrine repugnant to every principle of equity. Such
however is the condition of human life, that no full
security can be enjoyed. The only protection against
uncertain fears must be sought, not from violence, but
from the divine providence, and defensive precaution.
XVIII. There is another opinion, not more admissible,
* Sections XIII. XIV. and XV. of the original are omitted in the
translation. — TRANSLATOR.
84 HUGO GROTIUS
maintaining that the hostile acts of an aggressor, may
be considered in the light of defensive measures, because,
say the advocates of this opinion, few people are con
tent to proportion their revenge to the injuries they
have received; bounds which in all probability the party
aggrieved has exceeded, and therefore in return becomes
himself the aggressor. Now the excess of retaliation
cannot, any more than the fear of uncertain danger, give
a colour of right to the first aggression, which may be
illustrated by the case of a malefactor, who can have no
right to wound or kill the officers of justice in their
attempts to take him, urging as a plea that he feared
the punishment would exceed the offense.
The first step, which an aggressor ought to take, should
be an offer of indemnity to the injured party, by the
arbitration of some independent and disinterested state.
And if this mediation be rejected, then his war assumes
the character of a just war. Thus Hezekiah when he
had not stood to the engagements made by his ancestors,
being threatened with an attack from the King of Assyria
on that account, acknowledged his fault, and left it to the
King to assign what penalty he should pay for the offence.
After he had done so, finding himself again attacked,
relying on the justice of his cause, he opposed the enemy,
and succeeded by the favour of God. Pontius the Sam-
nite, after restoration of the prizes had been made to
the Romans, and the promoter of the war delivered up
into their hands, said, ((We have now averted the wrath
of heaven, which our violation of treaties had provoked.
But the supreme being who was pleased to reduce us to
the necessity of restoration, was not equally pleased with
the pride of the Romans, who rejected our offer. What
farther satisfaction do we owe to the Romans, or to
Heaven, the arbiter of treaties ? We do not shrink from
submitting the measure of YOUR resentment, or of OUR
punishment to the judgment of any people, or any indi
vidual. }> In the same manner, when the Thebans had
offered the most equitable terms to the Lacedaemonians,
who still rose higher in their demands, Aristides says,
that the justice of the cause changed sides and passed
from the Lacedaemonians to the Thebans.
CHAPTER II.
THE GENERAL RIGHTS OF THINGS.
The general rights of things — Division of what is our own — The origin
and progress of property — Some things impossible to be made the
subject of property — The Sea of this nature, in its full extent, or in
its principal parts — Unoccupied lands may become the property of
individuals, unless they have been previously occupied by the people
at large — Wild beasts, fishes, birds, may become the property of
him who seizes them — In cases of necessity men have a right of
using that which has already become the property of others — To
sanction this indulgence, the necessity must be such that it cannot
otherwise be avoided — This indulgence not allowed where the posses
sor is in an equal degree of necessity — The party thus supplying his
wants from another's property, bound to make restitution whenever
it is possible. The application of this principle to the practice of war
— The right to use the property of another, provided that use be no
way prejudicial to the owner f— Hence the right to the use of running
water — The right of passing through countries, and by rivers ex
plained — An inquiry into the right of imposing duties on merchan
dise — The right of residing for a time in a foreign state — The right
of exiles to reside in the dominions of a foreign state, provided they
submit to its laws — In what .manner the right of occupying waste
places is to be understood — The right to certain articles necessary to
the support of human society, and life — The general right of purchas
ing those articles at a reasonable price — The right to sell, not of
equal force and extent — The right to those privileges which are pro
miscuously granted to foreigners — Inquiry whether it be lawful to
contract with any people for the purchase of their productions on
condition of their not selling the same to others.
I. AMONG the causes assigned to justify war, we may .
reckon the commission of injury, particularly such as
affects any thing which belongs to us. Now we establish f
this claim to any thing as our own either by a rightL
COMMON to us as men, or acquired by us in our INDIVIDUAL/
capacity. But to begin with that which is the common
right of all mankind; we may observe that it comprises
what is called by legal authorities, Corporeal and Incor
poreal rights.*
*Actus aliquos, which literally signifies certain acts, may be ren
dered by the term incorporeal rights, which imply the right of ways,
dignities, franchises, and many other personal privileges arising out of
certain corporeal kinds of property.
(85)
86 HUGO GROTIUS
Things corporeal are either unappropriated, or made
the subjects of private property. Now the things unap
propriated, are such that it may be either possible or im
possible for them to be reduced to a state of private
property.* In order therefore to understand this more
clearly, it will be necessary to take a survey of the origin
of property.
II. God gave to mankind in general, dominion over all
the creatures of the earth, from the first creation of the
world; a grant which was renewed upon the restoration
of the world after the deluge. All things, as Justin says,
formed a common stock for all mankind, as the inheritors
of one general patrimony. From hence it happened, that
every man seized to his own use or consumption what
ever he met with; a general exercise of a right, which
supplied the place of private property. So that to de
prive any one of what he had thus seized, became an
act of injustice. Which Cicero has explained in his third
book, on the bounds of good and evil, by comparing the
world to a Theatre, in which the seats are common prop
erty, yet every spectator claims that which he occupies,
for the time being, as his own. A state of affairs, which
could not subsist but in the greatest simplicity of man
ners, and under the mutual forbearance and good-will of
mankind. An example of a community of goods, arising
from extreme simplicity of manners, may be seen in some
nations of America, who for many ages have subsisted
in this manner without inconvenience. The Essenes of
old, furnished an example of men actuated by mutual
affection and holding all things in common, a practice
adopted by the primitive Christians at Jerusalem, and
*The words of Judge Blackstone will elucidate the meaning of
Grotius in this place. The learned Commentator says, « There are some
few things, which, notwithstanding the general introduction and continu*
ance of property, must still unavoidably remain in common ; being such
wherein nothing but an usufructuary property is capable of being had :
and therefore they still belong to the first occupant, during the time he
holds possession of them, and no longer. Such (among others) are the
elements of light, air, and water ; which a man may occupy by means of
his windows, his gardens, his mills, and other conveniences: such also
are the generality of those animals which are said to be ferae naturae,
or of a wild and untam cable disposition: which any man may seise upon
and keep for his own use or pleasure. All these things, so long as they
remain in possession, every man has a right to enjoy without disturb
ance; but if once they escape from his custody, or he voluntarily
abandons the use of them, they return to the common stock, and any
man else has a right to seise and enjoy them afterwards.
THE RIGHTS OF WAR AND PEACE 87
still prevailing among some of the religious orders. Man
at his first origin, requiring no clothing, afforded a proof
of the simplicity of manners in which he had been formed.
Yet perhaps, as Justin says of the Scythians, he might
be considered as ignorant of vice rather than acquainted
with virtue; Tacitus says, that in the early ages of the
world, men lived free from the influence of evil passions,
without reproach, and wickedness; and consequently
without the restraints of punishment. In primitive times
there appeared among mankind, according to Macrobius,
a simplicity, ignorant of evil, and inexperienced in craft:
a simplicity which in the book of Wisdom seems to be
called integrity, and by the Apostle Paul simplicity in
opposition to subtilty. Their sole employment was the
worship of God, of which the tree of life was the sym
bol, as it is explained by the ancient Hebrews, whose
opinion is confirmed by the Book of Revelation.
Men at that period subsisted upon the spontaneous
productions of the ground: a state of simplicity to which
they did not long adhere, but applied themselves to the
invention of various arts, indicated by the tree of knowl
edge of good and evil, that is the knowledge of those
things which may be either used properly, or abused;
which Philo calls a middle kind of wisdom.!* In this view,
Solomon says, God hath created men upright, that is, in
simplicity, but they have sought out many inventions, or,
in the language of Philo, they have inclined to subtilty.
In the sixth oration of Dion Prusaeensis it is said, (<the
descendants have degenerated from the innocence of
primitive times, contriving many subtile inventions no
way conducive to the good of life ; and using their strength
not to promote justice, but to gratify their appetites. w
Agriculture and pasturage seem to have been the most an
cient pursuits, which characterized the first brothers. Some
distribution of things would necessarily follow these differ
ent states ; and we are informed by holy writ, that the rivalry
thus created ended in murder. At length men increas
ing in wickedness by their evil communications with
each other, the race of Giants, that is of strong and vio
lent men appeared, whom the Greeks denominate by a
title, signifying those who make their own hands and
strength the measure of justice.
The world in progress of time being cleared of this
race by the deluge, the savage was succeeded by a softer
and more sensual way of life, to which the use of wine
88 HUGO GROTIUS
proved subservient, being followed by all the evil con
sequences of intoxication. But the greatest breach in the
harmony of men was made by ambition, which is con
sidered in some measure, as the offspring of a noble
mind. Its first and most eminent effects appeared in the
attempt to raise the tower of Babel ; the failure of which
caused the dispersion of mankind, who took possession of
different parts of the earth.
Still after this a community of lands for pasture,
though not of flocks, prevailed among men. For the
great extent of land was sufficient for the use of all
occupants, as yet but few in number, without their in
commoding each other. In the words of the Poet, it was
deemed unlawful to fix a land mark on the plain, or to
apportion it out in stated limits. But as men increased
in numbers and their flocks in the same proportion, they
could no longer with convenience enjoy the use of lands
in common, and it became necessary to divide them into
allotments for each family. Now in the hot countries of
the East, wells would be objects of great importance, for
the refreshment of their herds and flocks; so that in
order to avoid strife and inconvenience, all would be
anxious to have them as possessions of their own. These
accounts we derive from sacred history, and they are
found to agree with the opinions maintained upon this
subject by Philosophers and Poets, who have described
the community of goods, that prevailed in the early state
of the world, and the distribution of property which
afterwards took place. Hence a notion may be formed of
the reason why men departed from the primaeval state
of holding all things in common, attaching the ideas of
property, first to moveable and next to immoveable
things.
When the inhabitants of the earth began to acquire a
taste for more delicate fare than the spontaneous pro
ductions of the ground, and to look for more commodious
habitations than caves, or the hollow of trees, and to
long for more elegant cloathing than the skins of wild
beasts, industry became necessary to supply those wants,
and each individual began to apply his attention to some
particular art. The distance of the places too, into which
men were dispersed, prevented them from carrying the
fruits of the earth to a common stock, and in the next
place, the WANT of just principle and equitable kindness
would destroy that equality which ought to subsist both
THE RIGHTS OF WAR AND PEACE 89
in the labour of producing and consuming the necessaries
of life.
At the same time, we learn how things passed from
being held in common to a state of property. It was
not by the act of the mind alone that this change took
place. For men in that case could never know, what
others intended to appropriate to their own use, so as to
exclude the claim of every other pretender to the same;
and many too might desire to possess the same thing.
Property therefore must have been established either by
express agreement, as by division, or by tacit consent, as
by occupancy. For as soon as it was found inconvenient
to hold things in common, before any division of lands
had been established, it is natural to suppose it must
have been generally agreed, that whatever any one had
occupied should be accounted his own. Cicero, in the
third book of his Offices says, it is admitted as an uni
versal maxim, not repugnant to the principles of natural
law, that every one should rather wish himself to enjoy
the necessaries of life, than leave them for the acqui
sition of another. Which is supported by Quintilian, who
says, if the condition of life be such, that whatever has
fallen to the private use of any individual, becomes the
property of such holder, it is evidently unjust to take
away any thing which is possessed by such a right. And
the ancients in styling Ceres a law-giver, and giving the
name of Thesmophoria to her sacred rights, meant by
this to signify that the division of lands had given birth
to a new kind of right.
III. Notwithstanding the statements above made, it
must be admitted that some things are impossible to be :
reduced to a state of property, of which the Sea affords
us an instance both in its general extent, and in its
principal branches. But as some are willing to make
this concession with regard to individuals, but not with
regard to nations, the position advanced in the beginning
of this section may be proved from the following moral
argument, that as in this case the reason no longer sub
sists why men should hold all things in common, the
practice ceases also. For the magnitude of the sea is ,
such, as to be sufficient for the use of all nations, to I
allow them without inconvenience and prejudice to each
other the right of fishing, sailing, or any other advantage i
which that element affords. The same may be said of
air as common property, except that no one can use or
90 HUGO GROTIUS
enjoy it, without at the same time using the ground over
which it passes or rests. So that the amusement of fowl
ing cannot be followed, except by permission, without
trespassing upon the lands of some owner, over which
the birds fly.
The same appellation of COMMON may be given to the
sand of the shore, which being incapable of cultiva
tion, is left free to yield its inexhaustable supplies for the
use of all.
There is a natural reason also, which renders the sea,
considered in the view already taken, incapable of being
made property: because occupancy can never subsist, but
in things that can be confined to certain permanent
bounds. From whence Thucydides gives the name of in
finite space to unoccupied lands, and Isocrates speaking
of that occupied by the Athenians calls it that which has
been measured by us into alloted parts. But fluids, which
cannot be limited or restrained, except they be contained
within some other substance, cannot be occupied. Thus
ponds, and lakes and rivers likewise, can only be made
property as far as they are confined within certain banks.
But the ocean as it is equal to, or larger than the earth,
cannot be confined within the land: so that the ancients
said the earth was bounded in by the sea like a girdle
surrounding it. Nor can any imaginable division of it
have been originally framed. For as the greatest part of
it was unknown, it was impossible that nations far re
moved from each other could agree upon the bounds to
be assigned to different parts.
Whatever therefore was the common property of all,
and after a general division of all other things, retained
its original state, could not be appropriated by division,
but by occupancy. And the marks of distinction and
separation by which its different parts were known, fol
lowed such appropriation.
IV. The next matters to be noticed are those things,
which though not yet made property, may be reduced to
that condition. Under this description come waste lands,
desert islands, wild beasts, fishes, and birds. Now in
these cases there are two things to be pointed out,
which are a double kind of occupancy that may take
place; the one in the name of the Sovereign, or of a whole
people, the other by individuals, converting into private
estates the lands which they have so occupied. The
latter kind of individual property proceeds rather from
THE RIGHTS OF WAR AND PEACE 91
assignment than from free occupancy. Yet any places
that have been taken possession of in the name of a sov
ereign, or of a whole people, though not portioned out
amongst individuals, are not to be considered as waste
lands, but as the property of the first occupier, whether
it be the King, or a whole people. Of this description are
rivers, lakes, forests, and wild mountains.
V. As to wild beasts, fishes, and birds, it is to be ob
served that the sovereign of the respective lands, or
waters where they are found, has a legal right to pro
hibit any one from taking them, and thereby acquiring
a property in them. A prohibition extending to foreign
ers, as well as subjects. To foreigners; because by all
the rules of moral law they owe obedience to the sover
eign, for the time during which they reside in his terri
tories. Nor is there any validity in the objection founded
on the Roman Law, the Law of nature, or the Law of
nations, which, it is said, declare such animals to be
beasts of chace free to every one's hunting. For this is
only true, where there is no civil law to interpose its
prohibition; as the Roman law left many things in their
primitive state, which by other nations were placed upon
a very different footing. The deviations therefore from I
the state of nature, which have been established by the \,:
civil law, are ordained by every principle of natural just- >
ice to be obeyed by mankind. For although the civil
law can enjoin nothing which the law of nature prohib
its, nor prohibit any thing which it enjoins, yet it may
circumscribe natural liberty, restraining what was before
allowed; although the restraint should extend to the very
acquisition of property, to which every man AT FIRST had
a right by the law of nature.
VI. The next thing to be considered is the right, which
men have to the common use of things, already appro
priated; terms, in which at the first sight there appears
to be some inconsistency, as it appears that the estab
lishment of property has absorbed every right that sprung
from a state of things held in common. But this is by
no means the case. For the intention of those, who first
introduce private property, must be taken into the ac
count. And it was but reasonable to suppose, that in1
making this introduction of property, they would depart
as little as possible from the original principles of natu
ral equity. For if written laws are to be construed in a
sense, approaching as nearly as possible to the laws of
92 HUGO GROTIUS
nature, much more so are those customs which are not
fettered with the literal restrictions of written maxims.
From hence it follows that in cases of extreme necessity,
the original right of using things, as if they had remained
in common, must be revived; because in all human laws,
and consequently in the laws relating to property, the
case of extreme necessity seems to form an exception.
Upon this principle is built the maxim that if in a
voyage provisions begin to fail, the stock of every indi
vidual ought to be produced for common consumption;
for the same reason a neighbouring house may be pulled
down to stop the progress of a fire : or the cables or nets,
in which a ship is entangled, may be cut, if it cannot
otherwise be disengaged. Maxims, none of which were
introduced by the civil law, but only explained by it
according to the rules of natural equity.
Now among Theologians also it is a received opinion,
that if in urgent distress, any one shall take from another
what is absolutely necessary for the preservation of his
own life, the act shall not be deemed a theft. A rule
not founded, as some allege, solely upon the law of
charity, which obliges every possessor to apply some part
of his wealth to relieve the needy; but upon the original
division of lands among private owners, which was made
with a reservation in favour of the primitive rights of
nature. For if those who at first made the division had
been asked their opinion upon this point, they would
have given the same reason that has just been advanced.
Necessity, says Seneca, the great protectress of human
infirmity breaks through all human laws, and all those
made in the spirit of human regulations. Cicero in his
eleventh Philippic, says, that Cassius went into Syria,
which might be considered as another's province, if men
adhered to written laws, but if these were abolished, it
would be considered as his own by the law of nature.
In the sixth book and fourth chapter of Quintus Curtius,
we find an observation, that in a common calamity every
man looks to himself.
VII. Now this indulgence must be granted with pre
cautions and restrictions, to prevent it from degener
ating into licentiousness. And of these precautions, the
first requires the distressed party to try every mode of
obtaining relief, by an appeal to a magistrate, or by try
ing the effect of entreaty to prevail upon the owner to
grant what is necessary for his pressing occasions,
THE RIGHTS OF WAR AND PEACE 93
Plato allows any one to seek water from his neighbour's
well, after having dug to a certain depth in his own
without effect. Solon limits the depth to forty cubits;
upon which Plutarch remarks, that he intended by this
to relieve necessity and difficulty, but not to encourage
sloth. Xenophon in his answer to the Sinopians, in the
fifth book of the expedition of Cyrus, says, (( wherever
we come, whether into a barbarous country or into any
part of Greece, and find the people unwilling to afford us
supplies, we take them, not through motives of wan
tonness, but from the compulsion of necessity. }>
VIII. In the next place this plea of necessity cannot
be admitted, where the possessor is in an equal state of
necessity himself. For under equal circumstances the
owner has a better right to the use of his possessions.
Though Lactantius maintains that it is no mark of folly to
forbear thrusting another from the same plank in a ship
wreck in order to save yourself. Because you have thereby
avoided hurting another : a sin which is certainly a proof
of wisdom to abstain from. Cicero, in the third book of
his offices, asks this question, if a wise man, in danger
of perishing with hunger, has not a right to take the
provisions of another, who is good for nothing ? To
which he replies; By no means. For no one's life can
be of such importance as to authorize the violation of
that "general rule of forbearance, by which the peace and
safety of every individual are secured.
IX. In the third place, the party thus supplying his -,
wants from the property of another, is bound to make v
restitution, or give an equivalent to the owner, whenever
that is possible. There are some indeed, who deny this,
upon the ground that no one is bound to give an indemnity
for having exercised his own right. But strictly speak
ing, it was not a full and perfect right, which he exer
cised; but a kind of permission, arising out of a case of
necessity, and existing- no longer than while the necessity
continued. For such a permissive right is only granted
in order to preserve natural equity in opposition to the
strict and churlish rigour of exclusive ownership.
X. Hence it may be inferred, that, in the prosecution
of a just war, any power has a right to take possession
of a neutral soil; if there be real grounds, and not
imaginary fears for supposing the enemy intends to make
himself master of the same, especially if the enemy's
occupying it would be attended with imminent and irrepar-
94 HUGO GROTIUS
able mischief to that same power. But in this case the
restriction is applied that nothing be taken but what is
actually necessary to such precaution and security. Barely
occupying the place is all that can be justified; leaving
to the real owner the full enjoyment of all his rights,
immunities, and jurisdiction, and all the productions of
his soil. And this must be done too with the full inten
tion of restoring the place to its lawful Sovereign, when
ever the necessity, for which it was occupied, may cease.
The retaining of Enna, Livy says, was either an act of
violence, or a necessary measure; by violence meaning
the least departure from necessity. The Greeks, who
were with Xenophon being in great want of ships, by
Xenophon's own advice, seized upon those that were
passing, still preserving the property untouched for the
owners, supplying the sailors with provisions, and paying
them wages. The principal right therefore, founded upon
the original community of goods, remaining since the
introduction of property, is that of necessity, which has
just been discussed.
XI. There is another right, which is that of making
use of the property of another, where such use is attended
with no prejudice to the owner. For why, says Cicero,
should not any one ; when he can do it without injury to
himself, allow another to share with him those advan
tages, which are useful to the receiver, and no way
detrimental to the giver ? Seneca therefore observes,
that it is no favour to allow another to light his fire from
your flame. And in the yth book of Plutarch's Symposiacs,
we find an observation, that when we have provisions
more than sufficient for our own consumption it is wicked
to destroy the remainder; or after supplying our own
wants, to obstruct or destroy the springs of water; or
after having finished our voyage, not to leave for other
passengers the sea-marks, that have enabled us to steer
our course. *
XII. Upon the principles already established, a river,
as such, is the property of that people, or of the sovereign
of that people, through whose territories it flows. He
may form quays, and buttresses upon that river, and to
him all the produce of it belongs. But the same river,
as a running water, still remains common to all to draw
or drink it. Ovid introduces Latona thus addressing the
Lydians, (< Why do you refuse water, the use of which is
common ?}> where he calls water a public gift that is
THE RIGHTS OF WAR AND PEACE 95
common to men, taking the word public in a more gen
eral sense than as applied to any PEOPLE, a meaning in
which some things are said to be public by the law of
nations. And in the same sense Virgil has asserted water
to be free and open to all men.
XIII. It is upon the same foundation of common
right, that a free passage through countries, rivers, or
over any part of the sea, which belongs to some particular
people, ought to be allowed to those, who require it for
the necessary occasions of life; whether those occasions
be in quest of settlements, after being driven from their
own country, or to trade with a remote nation, or to
recover by just war their lost possessions. The same
reason prevails here as in the cases above named. Because
property was originally introduced with a reservation of
that use, which might be of general benefit, and not
prejudical to the interest of the owner: an intention evi
dently entertained by those, who first devised the separation
of the bounteous gifts of the creator into private posses
sions. There is a remarkable instance of this in the
Mosaic history, when the leader of the children of Israel
required a free passage for that people, promising to the
King of Edom, and to the King of the Amorites, that he
would go by the highway, without setting a foot upon
the soil of private possessions, and that the people should
pay the price of everything, which they might have
occasion to use. Upon these equitable terms being re
jected, Moses was justified in making war upon the
Amorites. Because, says Augustin, an inoffensive passage,
a right interwoven with the very frame of human society,
was refused. The Greeks under the command of
Clearchus, said, <( we are upon the way to our home, if no
one interrupt us ; but every attempt to molest us, we are,
with the assistance of heaven, determined to avenge. M
Not unlike this answer of the soldiers under Clearchus
is the question put to the different nations of Thrace by
Agesilaus, who desired to know whether they wished him
to pass through their country as a friend, or as an en
emy. When the Boeotians hesitated upon some proposi
tions made to them by Lysander, he asked them whether
they intended that he should pass with erected or inclined
spears, meaning by the expression in a hostile or a quiet
manner. We are informed by Tacitus, that the Batavians,
as soon as they came near the camp at Bonn, sent a
message to Herennius Gallus, importing that <(they had
96 HUGO GROTIUS
no hostile design; that if not obstructed, they would
march in a peaceable manner; but if they met with op
position they would cut their way sword in hand. }> When
Cimon in carrying supplies to the Lacedaemonians, had
marched with his troops through some part of the Cor
inthian district, the Corinthians expostulated upon his
conduct as a violation of their territory, because he had
done it without asking their leave, at the same time ob
serving, that no one knocks at another man's door, or
presumes to enter the house without obtaining the mas
ter's leave. To whom he replied, you never knocked at
the gates of Cleone and Megara, but broke them down,
believing, I suppose, that no right ought to withstand
the force of the mighty.
Now between these two extremes there is a middle
course, requiring a free passage to be first asked; the
refusal of which will justify the application of force.
Thus Agesilaus in his return from Asia when he had
asked a passage of the King of the Macedonians, who
answered that he would consider of it, said, you may
consider, if you please, but we shall pass in the mean time.
The fears, which any power entertains from a multi
tude in arms passing through its territories, do not form
such an exception as can do away the rule already laid
down. For it is not proper or reasonable that the fears
of one party should destroy the rights of another. Es
pecially, as necessary precautions and securities may be
used, such as those, for instance, of requiring that the
troops shall pass without arms, or in small bodies; a
promise which the Agrippinians made to the Germans.
And, as we are informed by Strabo, the practice still
prevails in the country of the Eleans. Another security
may be found in providing garrisons at the expense of
the party, to whom the passage is granted; or in giving
hostages; the condition, which Seleucus demanded of
Demetrius, for permitting him to remain within his ter
ritories. Nor is the fear of offending that power, which
is the object of attack, a sufficient pretext for refusing
the passage of the troops to the state that is engaged in
a just war. Nor is it a proper reason to assign for a
refusal, to say that another passage may be found; as
every other power might allege the same, and by this
means the right of passage would be entirely defeated.
The request of a passage therefore, by the nearest and
most commodious way, without doing injury and mis-
THE RIGHTS OF WAR AND PEACE 97
chief, is a sufficient ground upon which it should be
granted. It alters the case entirely, if the party making
the request is engaged in unjust war, and is marching
with the troops of a power hostile to the sovereign of
that territory; for in this instance, a passage may be
refused. For the sovereign has a right to attack that
power in his own territory, and to oppose its march.
Now a free passage ought to be allowed not only to
persons, but to merchandise. For no power has a right
to prevent one nation from trading with another at a
remote distance; a permission which for the interest of
society should be maintained. Nor can it be said that
any one is injured by it. For though he may be thereby
deprived of an exclusive gain, yet the loss of what is not
his due, as a MATTER OF RIGHT, can never be considered
as a damage or the violation of a claim.
XIV. But it will form a subject of inquiry, whether
the sovereign of the country has a right to impose duties
on goods carried by land, or upon a river or upon any
part of the sea, which may form an accession to his
dominions. It would undoubtedly be unjust for any
burdens foreign to the nature of trade to be imposed
upon such goods. Thus strangers merely passing through
a country would have no right to pay a poll-tax, imposed
to support the exigencies of the state. But if the sover
eign incurs expence by providing security and protection
to trade, he has a right to reimburse himself by the
imposition of moderate and reasonable duties. It is the
REASONABLENESS of them, which constitutes the justice
of customs and taxes. Thus Solomon received tolls for
horses and linen that passed over the Isthmus of Syria.
Pliny, speaking of frankincense, observes that as it could
not be transported but by the Gebanites, a duty upon it
was paid to their king. In the same manner, as Strabo
informs us in his fourth book, the people of Marseilles
derived great wealth from the canal which Marius had
made from the Rhone to the sea, by exacting tribute of
all that sailed upon it to and fro with vessels. In the
eighth book of the same writer, we are told that the
Corinthians imposed a duty upon all goods, which, to
avoid the dangerous passage of Cape Malea, were trans
ported by land from sea to sea. The Romans too made
the passage of the Rhine a source of tribute, and Seneca
relates that a toll was paid for going over bridges.
98 HUGO GROTIUS
The works of legal writers abound in instances of this
kind. But it frequently happens that extortion is prac
tised in these matters, which Strabo forms into a subject
of complaint against chiefs of the Arabian tribes, con
cluding that it would be unlikely for men of that lawless
kind to impose upon the goods of merchants any duties
that were not oppressive.
XV. Those going with merchandise or only passing
through a country, ought to be allowed to reside there
for a time, if the recovery of health, or any other just
cause should render such residence necessary. For these
may be reckoned among the innocent uses of our right.
Thus Ilioneus in Virgil calls heaven to witness the in
justice of the Africans in driving him and his ship
wrecked companions from the hospitable use of the
shore, and we are informed by Plutarch in his life of
Pericles that all the Grecians approved of the complaint,
which the Megarensians made against the Athenians,
who had prohibited them from setting foot upon the
soil of their territories, or carrying a vessel into their
harbours. So the Lacedaemonians regarded this as the
most sufficient grounds to justify the war.
From hence results the right of erecting a temporary
hut, upon the shore, although, for instance, the same
shore is allowed to be the property of the people of that
place. For what Pomponius says of its being necessary
to obtain the Praetor's leave, before a building can be
raised upon the public shore, relates to structures of a
permanent kind, when the massy piles of stone, as the
Poet says, encroach upon the sea, and the affrighted fish
feel their waves contracted.
XVI. Nor ought a permanent residence to be refused
to foreigners, who, driven trom their own country, seek
a place of refuge. But then it is only upon condition
that they submit to the established laws of the place, and
avoid every occasion of exciting tumult and sedition. A
reasonable rule, which the divine poet has observed, when
he introduces Aeneas making an offer that Latinus, who
had become his father-in-law, should retain all military
and civil power. And in Dionysius of Halicarnassus,
Latinus admits the proposal of Aeneas to be just; as he
came through necessity in quest of a settlement. To
drive away refugees, says Strabo, from Eratosthenes, is
acting like barbarians; and a conduct like this in the
THE RIGHTS OF WAR AND PEACE 99
Spartans was also condemned. St. Ambrose passes the
same sentence of condemnation upon those powers, who
refuse all admission to strangers. Yet settlers of this
description have no right to demand a share in the gov
ernment. A proposal of this kind made by the Minyae
to the Lacedaemonians, who had received them, is very
properly considered by Herodotus as insolent, and un
reasonable.
XVII. It is indeed but an act of common humanity in
a sovereign to allow strangers, at their request, liberty
to fix their residence upon any waste or barren lands
within his dominions, still reserving to himself all the
rights of sovereignty. Seven hundred acres of barren
and unctiltivated land, as Servius observes, were given
by the native Latins to the Trojans. Dion Prusaecnsis,
in his seventh oration, says, that they commit no crime
of tresspass, wrho take upon them to cultivate waste
lands. The refusal of this privilege made the Ansibarians
exclaim, ((the firmament over our heads is the mansion
of the deity: the earth was given to man; and what
remains unoccupied, lies in common to all." Yet that
complaint did not apply exactly to their case. For those
lands could not be called unoccupied, as they served to
supply the Roman army with forage for their cattle,
which certainly furnished the Romans with a just pretext
for refusing to grant their request. And with no less
propriety the Romans asked the Galli Senones if it were
right to demand lands already possessed, and to threaten
to take them by force.
XVIII. Since the COMMON RIGHT TO THINGS has been es
tablished, the COMMON RIGHT TO ACTIONS follows next in
order, and this right is either absolute, or established by
the supposition of a general agreement amongst mankind.
Now all men have absolutely a right to do such or such
acts as are necessary to provide whatever is essential to
the existence or convenience of life. CONVENIENCE is
included in this right; for there is no occasion here to
imagine an existence of the same necessity as was requi
site to authorize the seizing of another's property. Be
cause the point of discussion here is not whether
any act is done AGAINST THE WILL of an owner, but
whether we acquire what is necessary for our wants
ACCORDING TO THE TERMS to which the owner has agreed.*
* The meaning of Grotius in this Section will be more clearly under-
TOO HUGO GROTIUS
Supposing there is nothing illegal in the contract, nor
any wilful intention on his part to make it null and void.
For any impediment created by the owner in such trans
actions, is repugnant to the very principles of natural
justice, which suppose an equality of upright dealing to
subsist in both the parties concerned. St. Ambrose calls
a fraudulent conduct of that kind, an attempt to deprive
men of their share in the goods of a common parent, to
withhold the productions of nature which are the birth
right of all, and to destroy that commerce which is the
very support of life. For we are not treating of super
fluities and luxuries, but of those things, which are essen
tial to life, as physic, food and cloathing.
XIX. From what has already been proved, it follows
that all men have a right to purchase the necessaries of
life at a reasonable price, except the owners want them
for their own use. Thus in a great scarcity of corn,
there would be no injustice in their refusing to sell.
And yet in such a time of necessity foreigners, who have
been once admitted, cannot be driven away; but as St.
Ambrose shews in the passage already quoted, a common
evil must be borne by all alike.
XX. Now owners have not the same right in the sale
of their goods : for others are at full liberty to determine
whether they will purchase certain articles or not. The
ancient Belgians, for instance, allowed not wines and
other foreign merchandise to be imported among them.
The same rule, we are informed by Strabo, was practised
by the Nabathaean Arabians.
XXI. It is supposed to be generally agreed among man
kind, that the privileges, which any nation grants pro
miscuously to the subjects of foreign powers or countries,
stood by a brief explanation of the nature of Contracts. (( Now contracts
are of two kinds, either express or implied. Express contracts are openly
uttered and avowed at the time of making, as to deliver an ox, or ten load
of timber, or to pay a stated price for certain goods. Implied are such as
reason and justice dictate, and which therefore the law presumes, that
every man undertakes to perform. As, if I employ a person to do any bus
iness for me, or perform any work ; the law implies that I undertook, or
contracted, to pay him as much as his labor deserves. If I take up wares
from a tradesman, without any agreement of price, the law concludes,
that I contracted to pay their real value. And there is also one species
of implied contracts, which runs through and is annexed to all other con
tracts, conditions, and covenants, viz. that if I fail in my part of the
agreement, I shall pay the other party such damages as he has sustained
by such my neglect or refusal. Blackst. Com. b. ii. c. 30. p. 442.
THE RIGHTS OF WAR AND PEACE 101
are the common right of all.* Consequently the exclu
sion of any one people from these rights would be
considered as an injury to that people. Thus, wherever
foreigners in general are allowed to hunt, to fish, to
shoot, to gather pearls, to succeed to property by testa
ment, to sell commodities, or to form intermarriages, the
same privileges cannot be refused to any particular peo
ple, unless they have by misconduct forfeited their right.
On which account the tribe of Benjamin was debarred
from intermarrying with other tribes.
XXII. It has sometimes been a subject of inquiry
whether one nation may lawfully agree with another to ex
clude all nations but herself from purchasing certain pro
ductions, which are the peculiar growth of her soil. An
agreement which, it is evident, may be lawfully made;
if the purchaser intends to supply other nations with
those articles at a reasonable price. For it is a matter
of indifference to other nations OF WHOM they purchase,
provided they can have a reasonable supply for their
wants. Nor is there any thing unlawful in allowing one
people an advantage over another in this respect, particu
larly for a nation who has taken another under her pro
tection and incurred expence on that account. Now
such a monopoly, under the circumstances already men
tioned, is no way repugnant to the law of nature,!
* There are cases in which monopolies, and the exclusive privileges
of trading companies are not only allowable but absolutely necessary.
<(For there are, says Vattel, commercial enterprizes that cannot be car
ried on without an energy that requires considerable funds, which sur
pass the ability of individuals. There are others that would soon
become ruinous, were they not conducted with great prudence, with one
regular spirit, and according to well supported maxims and rules.
These branches of trade cannot be indiscriminately carried on by indi
viduals: companies are therefore formed, under the authority of the
government ; and these companies cannot subsist without an exclusive
privelege. It is therefore advantageous to the nation to grant them:
hence have arisen in different countries, those powerful companies that
carry on commerce with the East. »— Law of Nat. b. i. c. viii. sect. 97.
p. 42.
f Adam Smith in his Wealth of Nations, speaking of treaties of com
merce, observes, that « when a nation binds itself by treaty, either to
permit the entry of certain goods from one foreign country which it pro
hibits from all others, or to exempt the goods of one country from duties
to which it subjects those of all others, the country, or at least the mer
chants and manufacturers of the country, whose commerce is so fa
voured, must necessarily derive great advantages from the treaty.
Those merchants and manufacturers enjoy a sort of monopoly in the
102 HUGO GROTIUS
though it may be sometimes for the interest of the
community to prohibit it by express laws.
country, which is so indulgent to them. That country becomes a
market both more extensive and more advantageous for their goods:
more extensive, because the goods of other nations being either ex
cluded or subjected to heavier duties, it takes off a great quantity of
theirs: more advantageous, because the merchants of the favoured coun
try, enjoying a sort of monopoly there, will often sell their goods for a
better price, than if exposed to the free competition of all other nations.*
— Vol. 2. b. iv. ch. vi.
CHAPTER III.
ON THE ORIGINAL ACQUISITION OF THINGS, AND THE RIGHT
OF PROPERTY IN SEAS AND RIVERS.
Specification of moveable property — The difference between sover
eignty and property — The right to moveables by occupancy may be
superseded by law — Rivers may be occupied — Right to seas — On
the treaties binding a people not to navigate the seas beyond cer
tain bounds — Inquiry into the nature of the change which a river,
changing its course, makes in the adjoining territories — What de
termination is to be made, wThere the river has entirely changed its
channel — Sometimes a whole river may accrue to a territory —
Things deserted belong to the first occupier.
I. AMONG the means of acquiring property, Paulus the
Lawyer reckons one, which seems most natural, and that
is, if by the ingenuity of art, or the exertions of labour
we have given to any production its existence among
the works of man. Now as nothing can naturally be
produced, except from some materials before in exist
ence, it follows that, if those materials were our own,
the possession of them under any new shape, or com
modity is only a CONTINUATION of our former property;
if they belonged to no one, our possession comes under
the class of title by occupancy : but if they were another's,
no improvement of ours can by the law of nature give
us a right of property therein.
II. Among those things, which belong to no one, there
are two that may become the subjects of occupancy; and
those are jurisdiction, or sovereignty and property. For
jurisdiction and property are distinct from each other in
their effects. The objects over which sovereignty may
be exercised are of a twofold description, embracing both
persons and things. But this is not the case with prop
erty, the right of which can extend only to the irrational
and inanimate part of the creation. Though it might
originally, for the most part, be the same act by which
sovereignty and property were acquired, yet they are in
their nature distinct. SOVEREIGNTY, says Seneca, belongs
to PRINCES and PROPERTY to INDIVIDUALS. The sover
eignty therefore, not only over subjects at home, but
(103)
104 HUGO GROTIUS
over those in the prince's foreign dominions passes with
the hereditary descent of the crown.
III. In places, where sovereignty is already established,
the right to moveables by occupancy, and indeed every
original right must give way to the superior sanction of
law. And what any man before held by any such right,
he would afterwards be considered as holding by the
laws of the country. For those original rights were PER
MISSIONS of the law of nature, and not commands that
were to be PERPETUALLY enforced. For the continued
establishment of such a right as that by prior occupancy,
so far from promoting the welfare, would operate to the
very destruction of human society. Although it may be
said by wTay of objection, that the law of nations seems
to admit of such a right, yet we may answer that if such
a rule either is or has been commonly received in any
part of the world, it has not the force of a general com
pact binding upon different independent nations ; but may
be considered as one branch of the civil law of many
nations, which any state has a right to continue, or re
peal according to its own pleasure or discretion. There
are many other things indeed which legal writers, in
treating of the division and acquisition of property, con
sider as forming a part of the law of nations.
IV. Rivers may be occupied by a country, not includ
ing the stream above, nor that below its own territories.
But the waters which wash its lands form an inseparable
part of the current, making its way to the main sea.
For to constitute the right to a property in its channel, it
is sufficient that its sides, inclosed by the banks of
that territory form its greatest part, and that the river
itself compared with the land, makes but a small por
tion.
V. In the same manner, the sea appears capable of
being made a property by the power possessed of the
shore on both sides of it; although beyond those limits
it may spread to a wide extent, which is the case with
a bay, and with a straight beyond each of its outlets
into the main sea or ocean. But this right of property
can never take place where the sea is of such a magni
tude, as to surpass all comparison with that portion of
the land which it washes. And the right, which one
people or prince possesses, may also be shared by a great
number of states, among whose respective territories the
sea flows. Thus rivers separating two powers may be
THE RIGHTS OF WAR AND PEACE 105
occupied by both, to each, of whom their use and advan
tages may be equal.
VI. Instances may be found of treaties by which one
nation binds itself to another, not to navigate particular
seas beyond certain bounds. Thus between the Egyp
tians and the Princes inhabiting the borders of the Red
Sea, it was agreed, in ancient times, that the former
should not enter that sea with any ship of war, nor with
more than one merchant ship. In the same manner, in
the time of Cimon, the Persians were bound by a treaty,
made with the Athenians, not to sail with any ship of
war between the Cyanean rocks and the Chelidonian
islands; a prohibition, which, after the battle of Salamis,
restricted any Persian armed vessel from sailing between
Phaselis and the above named rocks. In the one year's
truce of the Peloponnesian war, the Lacedaemonians
were prohibited from sailing with any ships of war what
ever, or indeed with any other ships of more than twenty
tons burden. And in the first treaty, which the Romans,
immediately after the expulsion of their kings, made
with the Carthaginians, it was stipulated that neither the
Romans, nor their allies should sail beyond the pro
montory of Pulchrum, except they were driven thither
by stress of weather, or to avoid being captured by an
enemy. Btit in either case they were to take nothing
more than necessaries, and to depart before the expira
tion of five days. And in the second treaty, the Romans
were prohibited from committing any acts of piracy, or
even from trading beyond the promontory of Pulchrum,
Massia and Tarseius.
In a treaty of peace between the Illyrians and Romans,
the latter required that they should not pass beyond the
Lissus with more than two frigates, and those unarmed.
In the peace with Antiochus, he was bound not to sail
within the capes of Calycadnius and Sarpedon, except
with ships carrying tribute, ambassadors, or hostages.
Now the instances alluded to do not prove the actual oc
cupancy of the sea, or the right of navigation. For it
may happen that both individuals and nations may grant
as a matter of favour or compact, not only what they
have a competent right to dispose of, but that which is
the common right of all men as well as of themselves.
When this happens, we may say as Ulpian did on a like
occasion, where an estate had been sold with a reserva
tion, that the purchaser should not fish for Tunny to the
106 HUGO 'GROTIUS
predjudice of the seller. He observed that the sea could
not be rendered subject to a service, but still the
purchaser and those who succeeded to his possession,
were bound in honour to observe that part of the con
tract.
VII. Whenever a river has changed its course, dis
putes have arisen between neighboring states to decide
whether such an alteration creates any change in the
adjoining territories, and to whom any addition of land
occasioned by that change accrues. Disputes which must
be settled according to the nature and manner of such
acquisition. Writers, who have treated of the division
of land, have described it as of a threefold nature: one
kind they name DIVIDED and ASSIGNED land, which Fron-
tinus the Lawyer calls LIMITED, because it is marked out
by artificial boundaries. By land ASSIGNED, is meant that
which has been appropriated to a whole community, com
prehending a certain number of families; a hundred for
instance: from whence it has derived that name. And
those portions are called hundreds. There is another di
vision called ARCIFINIUM, which is applied when the land
is defended against an enemy by the natural boundaries
of rivers or mountains. These lands Aggenus Urbicus
calls OCCUPATORY, being such as have been occupied
either by reason of their being vacant, or by the power
of conquest. In the two first kinds of lands, because
their extent and bounds are fixed and determined, though
a river should change its course, it occasions no change
of territory, and what is added by alluvion will belong
to the former occupant.
In arcifinious lands, where the bounds are formed by
nature, any gradual change in the course of the river
makes a change also in the boundaries of territory, and
whatever accession is given by the river to one side, it
will belong to the possessor of the land on that side.
Because the respective nations are supposed originally to
have taken possession of those lands, with an intention
of making the MIDDLE of that river, as a natural boun
dary, the line of separation between them. Thus Taci
tus in speaking of the Usipians and Tencterians, who
border on the Cattians, says, <( their territory lies on the
banks of the Rhine, where that river, still flowing in one
regular channel, forms a sufficient boundary."
VIII. Decisions like those above can only take place in
instances, where the river has not altered its channel.
THE RIGHTS OF WAR AND PEACE 107
For a river, dividing territories, is not to be considered
barely as so much water, but as water flowing in a PAR
TICULAR CHANNEL, and inclosed WITHIN CERTAIN BANKS.
For which reason an addition, a decrease, or such a
change of small portions, as leaves the ancient appear
ance, upon the whole, nearly the same, allows us
to consider the river as still the same. But if the
whole face of the river is changed, the case will be
entirely altered. For as a river may be entirely destroyed
by the erection of dams upon the higher parts of its
stream, or by digging canals, which carry off its waters
in another direction: so by the desertion of its old chan
nel, and breaking out for itself another course, it will not
continue to be same river it was before, but will be com
pletely a new one. In the same manner if a river has
been dried up, the middle of its channel will remain as
the boundary between neighbouring states, who in taking
possession of the neighbouring territory originally in
tended the middle of such a river to be the line of sep
aration, and under all changes to preserve the same as a
permanent limit. But in doubtful cases, the territo
ries bordering upon a river ought to be considered as
arcifinious, because nothing can be a more apt mark of
distinction than those impassable bounds assigned by na
ture. It very seldom indeed happens, that the artificial
or civil admeasurements of territory can be regulated by
such natural bounds, as they are, in general, the effect
of original acquisition, or have been ceded by treaty.
IX. Although in doubtful cases, it has been said that
the territories on each side of a river are determined by
the middle of the channel; yet it may happen, and has
happened, that the sole right to a river may belong to
the territories on one side of it. Because that on the
opposite side was of later occupancy, and subsequent to
the possession of that river by the other power: or be
cause this sole right may have been so settled by treaty.
X. It is not unworthy of observation that things which
have had an owner, but have ceased to have one, become
subject to the right by original aquisition. They are sup
posed to have been abandoned from the want of an
owner, and therefore have returned to the original state
of common stock. But at the same time it is proper to
observe, that some times the original acquisition may have
been made by a people or their sovereign, in such a
manner as to give them or him not only those pre-emi-
io8 HUGO GROTIUS
nent rights which constitute prerogative, but also the full
title of property.
And this property again may be divided into smaller
grants, and those again subdivided into other portions,
to be held as dependent upon the original grantor, the
Sovereign, or the Lord. Though the land may not be
held by base service, or vassalage, yet it is possessed by
some conditional tenure. For things are occupied by
many kinds of right ; among which may be reckoned the
right of a person who expects property to be left to him
under the condition of a trust. Seneca says, that an
owner's being debarred from selling his lands, committing
waste upon them, or even making improvements, is not
to be taken as a proof that the property is not his. For
that is a man's own, which he holds under any certain
conditions. Since then property distributed in the manner
above named is held of the sovereign, or of some inter
mediate Lord, who himself is tenant of the sovereign, it
follows that any thing which wants an owner does not
become the property of him, who can first seize it, but
reverts to the state or to the sovereign.
m
^ A
»
WAR
By Gari MelcJiers — From a pane! painting in Library of
Congress.
CHAPTER IV.
TITLE TO DESERT LANDS BY OCCUPANCY, POSSESSION, AND
PRESCRIPTION.
Why Usucaption or Prescription cannot subsist between independent
States, and Sovereigns — Long possession alledged as a ground of
right — Inquiry into the intentions of men, which are not to be
judged of by words alone — Intention to be judged of by acts —
Intentions also to be judged of by omissions — How far length of
time, silence, and non-possession, may confirm the conjecture of
an abandoned right — Time immemorial generally thought to bar
any claim — What constitutes time immemorial — Objections to a
presumed desertion of property, considered without any conjecture,
time immemorial appears to transfer and constitute a property —
Inquiry whether persons yet unborn may thus be deprived of their
right — Rules of civil law respecting Usucaption and Prescription
as applied to the case of Sovereign Princes, explained.
I. A GREAT difficulty arises here respecting the right
to property by uninterrupted possession for any certain
time. For though time is the great agent, by whose
motion all legal concerns and rights may be measured
and determined, yet it has no effectual power of itself
to create an express title to any property. Now those
rights were introduced by the civil law; and it is not
their long continuance, but the express provisions of the
municipal law, which gives them their validity. They
are of no force therefore, in the opinion of Vasquez,
between two. independent nations or sovereigns, or be
tween a free nation and a sovereign: between a sovereign
and an individual who is not his subject, or between
two subjects belonging to different kings or nations.
Which indeed seems true; and is actually the case; for
such points relating to persons and things, are not left
to the law of nature, but are settled by the respective
laws of each country. As the unqualified admission of
this principle would lead to great inconvenience, and
prevent the disputes of kings and nations respecting the
bounds of territory from ever being adjusted; in order
to eradicate the seeds of perpetual warfare and confusion,
so repugnant to the interests and feelings of every people ;
the settlement of such boundaries is not left to the claims
(109)
i io HUGO GROTIUS
of prescriptive right; but the territories of each contend
ing party are, in general, expressly defined by certain
treaties.
II. To disturb any one in the actual and long pos
session of territory, has in all ages been considered as
repugnant to the general interests and feelings of man
kind. For we find in holy writ, that when the King of
the Ammonites demanded the lands situated between the
rivers Arnon arid Jabok, and those extending from the
deserts of Arabia to the Jordan, Jepthah opposed his
pretentions by proving his own possession of the same
for three hundred years, and asked why he and his an
cestors had for so long a period neglected to make their
claim. And the Lacedaemonians, we are informed by
Isocratcs, laid it down for a certain rule admitted among
all nations, that the right to public territory as well as
to private property was so firmly established by length
of time, that it could not be disturbed; and upon this
ground they rejected the claim of those who demanded
the restoration of Messena.
Resting upon a right like this, Philip the Second was
induced to declare to Titus Quintius, (( that he would re
store the dominions which he had subdued himself, but
would upon no consideration give up the possessions
which he had derived from his ancestors by a just and
hereditary title. Sulpitius, speaking against Antiochus,
proved how unjust it was in him to pretend, that be
cause the Greek Nations in Asia had once been under
the subjection of his forefathers, he had a right to revive
those claims, and to reduce them again to a state of serv
itude. And upon this subject two historians, Tacitus and
Diodorus may be referred to; the former of whom calls
such obsolete pretentions, empty talking, and the latter
treats them as idle tales and fables. With these opinions
Cicero, in his 2nd book of Offices, agrees, asking (< what .
justice there can be in depriving an owner of the land,
which he has for many ages quietly possessed ? w
III. Can it be said, in order to justify the disturbance
of long enjoyed possessions, that the rightful owner
INTENDED to assert his claim, when he never manifested
such intention by any outward visible act ? The effect
of right which depends upon a man's intentions can never
follow from a bare conjecture of his will, unless he has
declared and proved it by some express and visible act.
For actions being the only evidence of intentions,
THE RIGHTS OF WAR AND PEACE in
intentions can never of themselves alone without such acts
be the object of human, laws. No conjectures indeed
respecting the acts of the mind can be reduced to mathe
matical certainty, but only to the evidence of probabil
ity at the utmost. For men by their words may
express intentions different from their real ones, and by
their acts counterfeit intentions which they have not.
The nature of human society, however, requires that all
acts of the mind, when sufficiently indicated, should be
followed by their due effects. Therefore the intention,
which has been sufficiently indicated, is taken for
granted against him who gave such indication.
IV. But to proceed to proofs derived from actions. A
thing is understood to be abandoned, wrhen it is cast away;
except it be under particular circumstances, as throwing
goods overboard in a storm to lighten a ship, where the
owner is not supposed to have abandoned all intention of
recovery, should it ever be in his power. Again, by giv
ing up or cancelling a promissory note, a debt is deemed
to be discharged. Paulus the Lawyer, says, a right to
property may be renounced not only by words, but also by
actions, or any other indication of the will. Thus, if an
owner knowingly make a contract with any one who is in
possession, treating him as if he were the rightful pro
prietor, he is naturally supposed to have relinquished his
own pretensions. Nor is there any reason, why the same
rule may not take place between sovereign princes, and
independent states, as between individuals. In the same
manner, a Lord by granting certain privileges to his
Vassal, which he could not legally enjoy without a release
from his former obligations, was supposed by such act to
have given him his freedom. A power derived not from
the civil law only, but from the law of nature, which
allows every man to relinquish what is his own, and from
a natural presumption that a person designed to do the
act which he has given manifest proofs of his intention
to do. In this sense, LTlpian may be rightly understood,
where he says, that ACCEPTILATION or the verbal discharge
of a debt is founded upon the law of nations.
V. Even omissions, taking all proper circumstances into
consideration, come under the cognizance of the law.
Thus the person, who knowing of an act, and being pres
ent at the commission of it, passes it over in silence,
seems to give his consent to it; this was admitted by the
Mosaic Law. Unless indeed it can be shewn that the
ii2 HUGO GROTIUS
same person was hindered from speaking either by fear
or some other pressing circumstance. Thus a thing is
accounted as lost when all hope of recovering it is given
up; as for instance, if a tame animal, which was in our
possession, be seized and carried off by a wild beast.
Goods too lost by shipwreck, Ulpian says, cease to be con
sidered as our own, not immediately, but when they are
lost beyond all possibility of being reclaimed, and when
no proofs of the owner's intention to reclaim them can
be discovered.
Now the case is altered, if persons were sent to inquire
after the lost goods, or property, and a reward was
promised to the finder. But if a person knows his prop
erty to be in the possession of another, and allows it to
remain so for a length of time, without asserting his
claim, unless there appear sufficient reasons for his silence,
he is construed to have entirely abandoned all pretentions
to the same. And to the same purpose he has said else
where, that a house is looked upon to be abandoned on
account of the long silence of the proprietor.
The Emperor Antoninus Pius, in one of his rescripts,
said there was but little justice in claiming interest upon
money after a long period ; for the length of time elapsed
was an indication that the debtor had been excused from
payment, from some motive of kindness.
There appears something similar to this in the nature of
custom. For apart from the authority of civil laws, which
regulate the time and manner of custom, and its intro
duction, it may arise from the indulgence of a sovereign
to a conquered people. But the length of time from
which custom derives the force of right, is not defined,
but left to the arbitrary decision of what is sufficient to
indicate general consent. But for silence to be taken as
a valid presumption that property is deserted, two things
are requisite: it must be a silence with a knowledge of
the fact, and with a perfect freedom of will in the person
concerned. For a silence founded in ignorance can have
no weight; and where any other reason appears, the pre
sumption of free consent must fail.
VI. Although the two requisites already named may be
produced, yet other reasons have their weight; among
which length of time is not the least important. For in
the first place, it can scarcely happen, that for a great
length of time a thing belonging to any one should not
some way or other come to his knowledge, as time might
THE RIGHTS OF WAR AND PEACE 113
supply many opportunities. Even if the civil law did not
interpose to bar remote pretensions, the very nature of
things would shew the reasonableness of a shorter period
of limitation being allowed to present than to absent
claimants. If impressions of fear were pleaded by any
one in excuse, yet their influence would not be of per
petual duration, and length of time would unfold various
means of security against such fears, either from resources
within himself, or from the assistance of others. Escaping
beyond the reach of him he dreaded, he might protest
against his oppression, by appealing to proper judges and
arbitrators.
VII. Now as time immemorial, considered in a moral
light, seems to have no bounds, silence for such a length
of time appears sufficient to establish the presumption
that all claim to a thing is abandoned, unless the strongest
proofs to the contrary can be produced. The most able
Lawyers have properly observed, that time according to
the memory of man is not an hundred years, though
probably it may not fall far short of that space. For a
hundred years are the term beyond which human exist
ence seldom reaches; a space, which in general com
pletes three ages or generations of men. The Romans
made this objection to Antiochus, that he claimed cities,
which neither he himself, his father, nor his grandfather
had ever possessed.
VIII. From the natural affection which all men have
for themselves, and their property, an objection may be
taken against the presumption of any one's abandoning
a thing which belongs to him, and consequently negative
acts, even though confirmed by a long period of time,
are not sufficient to establish the above named conjec
ture.
Now considering the great importance deservedly
attached to the settlement of CROWNS, all conjectures
favourable to the possessors ought to be allowed. For if
Aratus of Sicyon thought it a hard case, that PRIVATE
possessions of fifty years' standing should be disturbed,
how much weightier is that maxim of Augustus, that it
is the character of a good man and a good subject to
wish for no change in the present government, and, IN
THE WORDS, WHICH THUCYDIDES HAS ASSIGNED TO AL-
CIBIADES, to support the constitution, under which he has
been born ? But if no such rules in favour of possession
could be adduced, yet a more weighty objection might
8
ii4 HUGO GROTIUS
be found against the presumption, drawn from the in
clination of every one to preserve his own right, which
is the improbability of one man's allowing another to
usurp his property for any length of time, without de
claring and asserting his own right.
IX. Perhaps it may reasonably be said, that this mat
ter does not rest upon presumption only, but that it is a
rule, introduced by the voluntary law of Nations, that
uninterrupted possession, against which no claim has
been asserted, will entirely transfer such property to the
actual possessor. For it is most likely that all nations
by consent gave their sanction to such a practice, as
conducive to their common peace. The term uninter
rupted possession therefore has been very properly used
to signify, as Sulpitius says in Livy, <( that which has
been held by one uniform tenour of right, without inter
mission. }> Or as the same author, in another place, calls
it, (( perpetual possession, that has never been called in
question. )} For a transitory possession creates no title.
And it was this exception which the Numidians urged
against the Carthaginians, alleging that as opportunity
offered, sometimes the Kings of the Numidians had ap
propriated to themselves the disputed possessions, which
had always remained in the hands of the stronger
party.
X. But here another question, and that of considerable
difficulty, arises, which is, to decide, whether, by this
desertion, persons yet unborn may be deprived of their
rights. If we maintain that they MAY NOT, the rule al
ready established would be of no avail towards settling
the tranquillity of kingdoms, and security of property.
For in most things some thing is due to the interests of
posterity. But if we affirm that they MAY, it then seems
wonderful that silence should prejudice the rights of
those, who were unable to speak, before they had any
existence, and that the act of OTHERS should operate to
their injury. To clear up this point, we must observe
that no rights can belong to a person before he has any
existence, as, in the language of the schools, there can
be no accident without a substance. Wherefore if a
Prince, from urgent motives of policy, and for the ad
vantage of his own native dominions, and subjects, should
decline to accept an additional sovereignty, or for the
same reasons, should relinquish that, which he had al
ready accepted, he would not be charged with injuring
THE RIGHTS OF WAR AND PEACE 115
his heirs and successors, then unborn, who could have no
rights before they had a natural existence.
Now as a sovereign may EXPRESSLY declare a change
of his will respecting such dominions, so that change
may, in certain cases, be implied without such declara
tion.
In consequence of such a change either expressed or
implied, before the rights of heirs and successors can be
supposed to have any existence, the possession may be
considered as entirely abandoned. The case here has
been considered according to the LAW OF NATURE: for the
civil law, among other fictions, introduced that of the
law's personating those, who are not yet in being, and
so preventing any occupancy from taking place to their
prejudice; a regulation of the law established upon no
slight grounds in order to preserve estates in families,
although every means of PERPETUATING property to indi
viduals, which prevents its transfer from hand to hand,
may in some measure be detrimental to the public in
terest. From whence it is a received opinion, that length
of time will give a property in those fees, which were
originally conveyed, not by right of succession, but by
virtue of primitive investiture. Covarruvias, a lawyer of
great judgment, supports this opinion with the strongest
arguments in favour of primogeniture, and applies it to
estates left in trust. For nothing can prevent the civil
law from instituting a right, which, though it cannot be
lawfully alienated by the act of one party without con
sent of the other, yet, to avoid uncertainty in the tenure
of present proprietors, may be lost by neglect of claim
for a length of time. Still the parties thus deprived may
maintain a personal action against those, or their heirs,
through whose neglect their right has been forfeited.
XI. It is an inquiry of importance whether the law of
usucaption and prescription, if it prevail in a prince's
dominions, can be applied to the tenure of the crown,
and all its prerogatives. Many legal writers, who have
treated of the nature of sovereign power according to the
principles of the Roman civil law, seem to affirm that it
may be so applied. But this is an opinion to which we
cannot accede in its full extent. For to make a law
binding upon any one, it is requisite that the legislator
should possess both power and will. A legislator is not
bound by his law, as by the irrevocable and unchange
able controul of a superior. But occasions may arise that
n6 HUGO GROTIUS
will demand an alteration or even a repeal of the law
which he has made. Yet a legislator may be bound by
his own Iaw5 not directly as a legislator, but as an indi
vidual forming part of the community: and that too
according to natural equity, which requires that all the
component parts should bear a reference to the whole.
We find in holy writ, this rule observed by Saul in the
beginning of his reign.
Now that rule does not take place here. For we are
considering the lawgiver, not as a part but as the REP
RESENTATIVE and SOVEREIGN of the whole community. Nor
indeed can any such intention in the lawgiver be pre
sumed to have existed. For legislators are not supposed
to comprehend themselves within the rule of the law,
except where the nature and subject of it are general.
But sovereignty is not to be compared with other things ;
it so far surpasses them in the nobleness of its end, and
the dignity of its nature. Nor is any civil law to be
found which either does, or designs to comprehend sov
ereign power within the rules of prescription.
CHAPTER IX.*
IN WHAT CASES JURISDICTION AND PROPERTY CEASE.
Jurisdiction and property cease, when the family of the owner has
become extinct — In what manner the rights of a people may be
come extinct A people becomes extinct when its essential parts
are destroyed — A people does not become extinct by emigration —
The existence of separate states not destroyed by a federal union.
I. and II. AFTER the preceding inquiries into the man
ner in which private property as well as sovereign power
may be acquired and transferred, the manner, in which
they cease, naturally comes next under consideration. It
has been shewn before that the right to property may be
lost by neglect ; for property can continue no longer than
while the will of ownership continues. There is also an
other manner in which property may cease to exist, with
out any express or implied alienation: and that is where
the family either of a sovereign, or an owner, becomes
extinct, a contingency for which provision must be made
somewhat similar to a succession to the property of one
who dies intestate. Wherefore if any one die, with
out any declaration of his will, and have no relations by
blood, all the right, which he had, becomes extinct, and
reverts, if a sovereign, to the hands of the nation, except
where express provisions of law have been made to the
contrary.
III. The same mode of reasoning applies to a nation.
Isocrates, and after him the Emperor Julian, has said that
states are immortal, or may be so. For a people is one
of that kind of bodies which are formed of distinct
parts, following each other in regular succession, and
supplying the place of the deceased. This body goes
under one name, forming, as Plutarch says, one constitu-
* The translation proceeds from the fourth to the ninth Chapter of
the Second book of the original. The intermediate chapters, being
chiefly a repetition of the author's former arguments, respecting the
rights of seas and rivers, and other kinds of dominions; and that
relating to the rights of persons, being so fully treated in the first
volume of Judge Blackstone's Commentaries, it seemed unnecessary
to give them in the present work. — TRANSLATOR.
n8 HUGO GROTIUS
tion; or, in the language of Paulus the Lawyer, one
spirit. Now the spirit or constitution in a people is the
full and perfect harmony of civil life, from which ema
nates the sovereign power, the very soul of all govern
ment, and, as Seneca says, the vital breath which so many
thousands draw.
These artificial bodies bear a close resemblance to the
natural body, which, notwithstanding the alteration of its
component particles, loses not its identity, so long as the
general form remains. And therefore in the passage of
Seneca, where he says, that no one is the same in his
old age that he was in his youth, he means only as to
natural substance. In the same manner Heraclitus, as
cited by Plato in Cratylus, and Seneca in the place
already quoted, has said, that we cannot descend TWICE
into the same river. But Seneca afterwards corrects
himself, adding, that the river retains its name, though
the watery particles of which it is composed are perpet
ually changing. So Aristotle, too, in comparing nations
to rivers, has said that the rivers are always called by
the same name, though their several parts are fluctuat
ing every moment. Nor is it the name alone which con
tinues, but that principle also which Conon calls the
constitutional system of the body, and Philo the spirit,
that holds it together. So that a people, as Alphenus
and Plutarch, in speaking of the late, but unerring ap
proach of divine vengeance, maintain, though not one of
its members of a former period be now living, is the
same at present that it was a hundred years ago, as long
as the spirit, which first framed and afterwards kept the
body together, preserves its identity.
Hence has originated the custom, in addressing a peo
ple, of ascribing to them, who are now living, what hap
pened to the same people many ages before; as may be
seen both in profane historians, and in the books of holy
writ. So in Tacitus, Antony the First serving under
Vespasian, reminds the soldiers of the third legion of
what they had done in former times, how under Mark
Antony they had beaten the Parthians, and under Cor-
bulo the Armenians. There was more of prejudice, there
fore, than truth in the reproach, which Piso cast upon
the Athenians of his own time, refusing to consider them
as Athenians since they had become extinct by so many
disasters, and were nothing more than a base mixture of
all nations of the earth. We say there wras more of
THE RIGHTS OF WAR AND PEACE 119
prejudice than truth in this reproach. For though such
a mixture might diminish the dignity, it could not de
stroy the existence of a people. Nor was he himself
ignorant of this. For he reproaches the Athenians of
his own day with their feeble efforts in former times
against Philip of Macedon, and their ingratitude to their
best friends. Now as a change of its component parts
cannot destroy the identity of a people, not even for a
thousand years or more ; so neither can it be denied that
a people may lose its existence in two ways; either by
the extinction of all its members, or by the extinction
of its form and spirit.
IV. A body is said to die, when its essential parts,
and necessary form of subsistence are destroyed. To the
former case may be referred the instance of nations
swallowed up by the sea, as Plato relates, and others
whom Tertullian mentions: or if a people should be de
stroyed by an earthquake, of which there are many
instances in history, or should destroy themselves, as the
Sidonians and Saguntines did. We are informed by Pliny,
that in ancient Latium, fifty-three nations were destroyed
without a single trace of them remaining.
But what, it may be said will be the case, if out of
such a nation so few remain that they cannot form a
people ? They will then retain that property, which they
had before as private persons, but not in a public ca
pacity. The same is the case with every community.
V. A people loses its form, by losing all or some of
those rights, which it had in common; and this happens,
either when every individual is reduced to slavery, as the
Mycenaeans, who were sold by the Argives; the Olyn-
thians by Philip, the Thebans by Alexander, and the
Brutians, made public slaves by the Romans: Or when,
though they retain their personal liberty, they are de
prived of the rights of sovereignty. Thus Livy informs
us respecting Capua, that the Romans determined, though
it might be inhabited as a city, that there should be no
municipal body, no senate, no public council, no magis
trates, but that deprived of political deliberation, and
sovereign authority, the inhabitants should be considered
as a multitude; subject to the jurisdiction of a Praefect
sent from Rome. Therefore Cicero, in his first speech
against Rullus, says that there was no image of a repub
lic left at Capua. The same may be said of nations re
duced to the form of Provinces, and of those subjugated
120 HUGO GROTIUS
by another power; as Byzantium was to Perinthus, by
the Emperor Severus, and Antioch to Laodicea, by
Theodosius.
VI. But if a nation should emigrate, either spontane
ously, on account of scarcity or any other calamity, or if
by compulsion, which was the case with the people of
Carthage in the third Punic war, while she retains her
form, she does not cease to be a people; and still less
so, if only the walls of her cities' be destroyed, and there
fore when the Lacedaemonians refused to admit the Mes-
senians to swear to the peace of Greece, because the
walls of their city were destroyed, it was carried against
them in the General Assembly of the Allies.
Nor does it make any difference in the argument,
whatever the form of government may be, whether regal,
aristocratical, or democratical. The Roman people for
instance was the same, whether under kings, consuls, or
emperors. Even indeed under the most absolute form,
the people is the same that it was in its independent
state, while the king governs it as head of that people,
and not of any other. For the sovereignty which resides
in the king as the head, resides in the people likewise
as the body of which he is the head ; and therefore in an
elective government, if the king or the royal family
should become extinct, the rights of sovereignty, as it
has been already shewn, would revert to the people.
Nor is this argument overthrown by the objection
drawn from Aristotle, who says that, if the form of
government is changed, the state no longer continues to
be the same, as the harmony of a piece of music is en
tirely changed by a transition from the Doric to the
Phrygian measure.
Now it is to be observed, that an artificial system may
possess many different forms, as in an army under one
supreme commander there are many subordinate parts,
and inferior powers, while in the operations of the field
it appears but as one body. In the same manner, the
union of the legislative and executive powers in a state
gives it the appearance of one form, while the distinc
tion between subject and sovereign, and their still mutual
relation give it another. The executive power is the
politician's concern; the judicial, the lawyer's. Nor did
this escape the notice of Aristotle. For he says it
belongs to a science different from that of politics to
determine whether, under a change in the form of gov-
THE RIGHTS OF WAR AND PEACE 121
ernment, the debts contracted under the old system
ought to be discharged by the members of the new.
He does this, to avoid the fault which he blames in
many other writers, of making digressions from one
subject to another.
It is evident that a state, which from a commonwealth
has become a regal government, is answerable for the
debts incurred before that change. For it is the same
people, possessing all the same rights, and powers, which
are now exercised in a different manner, being no longer
vested in the body, but in the head. This furnishes a
ready answer to a question some times asked, which is,
what place in general assemblies of different states, ought
to be assigned to a sovereign, to whom the people of a
commonwealth have transferred all their power ? Un
doubtedly the same place which that people or their
representatives had occupied before in such councils.
Thus in the Amphictyonic council, Philip of Macedon
succeeded to the place of the Phocensians. So, on the
other hand, the people of a commonwealth occupy the
place assigned to sovereigns.
VIII. * Whenever two nations become united, their
rights, as distinct states, will not be lost, but will be
communicated to each other. Thus the rights of the
Albans in the first place, and afterwards those of the
Sabines, as we are informed by Livy, were transferred
to the Romans, and they became one government. The
same reasoning holds good respecting states, which are
joined, not by a federal UNION, but by having one sov
ereign for their head.
IX. On the other hand, it may happen that a nation,
originally forming but one state, may be divided, either
by mutual consent, or by the fate of war; as the body
of the Persian Empire was divided among the successors
of Alexander. When this is the case, many sovereign
powers arise in the place of one, each enjoying its inde
pendent rights, whatever belonged to the original state,
in common, must either continue to be governed as a
common concern, or be divided in equitable proportions.
To this head may be referred the voluntary separation,
which takes place when a nation sends out colonies. For
* Section VII of the original is omitted in the translation. — TRANS
LATOR.
122 HUGO GROTIUS
thus a new people as it were is formed, enjoying their
own rights; and as Thucydides says, sent out not upon
terms of slavery, but equality, yet still owing respect
and obedience to their mother-country. The same writer,
speaking of the second colony sent by the Corinthians to
Epidamnus, says, ((they gave public notice that such as
were willing to go should enjoy equal privileges with
those that staid at horned
CHAPTER X.
THE OBLIGATION ARISING FROM PROPERTY.
Origin and nature of the obligation to restore what belongs to an
other — Obligation to restore to the rightful owner the profits that
have accrued from the unjust possession of his personal or real
property — A bona-fide possessor not bound to restitution if the
thing has perished — Such bona-fide possessor bound to the restitu
tion of the profits remaining in his hands — Bound to make repara
tion for the consumption occasioned by his possession — A possessor
not bound to make a recompence for a gift, with an exception —
The sale of any thing that has been bought, obliges the seller to
make restitution, with a certain exception — In what cases a bona-
fide purchaser of what belongs to another may retain the price, or
a part of it — He who has purchased a thing of one who is not
the real owner, cannot return it to that seller — The possessor
of a thing whose real owner is unknown, not bound to give it
up to any one — A person not bound to restore money received
upon a dishonest account, or for service done — Opinion that
the property of things valued by weight, number and measure,
may be transferred without consent of the owner, refuted.
I. HAVING explained in the preceding part the nature
and rights of property, it remains for us to consider the
obligation which we incur from thence.
Now this obligation proceeds from things either in
existence, or not in existence, comprehending, under the
name of things, the right also over persons, as far as is
beneficial to us. The obligation, arising from things in
existence, binds the person, who has our property in his
power, to do all he can to put us again into possession
of it. We have said to do all he can : for no one is bound
to an impossibility, nor to procure the restoration of a
thing at his own expence. But he is obliged to make
every discovery which may enable another to recover his
own property. For as in a community of things, it was
necessary that a certain equality should be preserved, to
prevent one man from having an undue share of the
common stock; so upon the introduction of property, it
became, as it were, a kind of established rule of society
among the owners, that the person, who had in his pos
session anything belonging to another should restore it
to the lawful proprietor. For if the right of property
(123)
124 HUGO GROTIUS
extended no farther than barely to enable the owner to
make a demand of restitution without ENFORCING it by
LEGAL PROCESS, it would rest upon a very weak foun
dation, and scarce be worth the holding. Nor does it
make any difference, whether a person has fairly or fraud
ulently obtained possession of a thing not belonging to
him. For he is equally bound to restore it, both by the
positive obligations of law, and by the principles of
natural justice. The Lacedaemonians had nominally
cleared themselves of the crime, by condemning Phaebidas,
who, in violation of their treaty with the Thebans, had
siezed upon the citadel of Cadmea, but in reality they
were guilty of injustice, by retaining the possession.
And Xenophoii has remarked that, such a singular act of
injustice was punished by the signal providence of God.
For the same reason Marcus Crassus, and Quintus Hor-
tensius, are blamed for having retained part of an
inheritance left them by a will, the making of which had
been procured upon false pretences, but in the management
of which they had no share. Cicero blames them, because
it is understood to be settled by general agreement, that all
men are to restore what they are possessed of, if another is
proved to be the rightful owner. A principle by which prop
erty is firmly secured, and upon which all special contracts
are founded, and any exceptions to this rule, contained
in them, must be expressly named as such. This throws
light upon the passage of Tryphoninus. <( If a robber,
says he, has spoiled me of my goods, which he has de
posited with Seius, who knows nothing of the fact; the
question is, whether he ought to restore them to the
robber or to me. If we consider him as giving and
and receiving on his own account, GOOD FAITH requires
that the deposit should be restored to him who gave it.
If we consider the equity of the whole case, including all
the persons concerned in the transaction, the goods should
be restored to me, as the person unjtistly deprived of
them. }> And he properly adds, <( I prove it to be strict
justice to assign to every one his due, without infringing
on the more just claims of another. }) Now it has been
shewn that the justest title on which any one can claim,
is that which is coaeval with the property itself. From
whence the principle laid down by Tryphoninus, that if
any one unknowingly received goods as a deposit, and
afterwards discovers them to be his own, he is not bound
to restore them. And the question, which the same
THE RIGHTS OF WAR AND PEACE 125
author puts a little before respecting goods deposited by
one, whose property had been confiscated, is better settled
by this principle, than by what he says elsewhere on the
utility of punishment. For as to the nature of property,
it makes no difference, whether it arises from the law
of nations, or from the civil law; as it always carries
with it peculiar qualities, among which may be reckoned
the obligation, under which every possessor lies to restore
a thing to its rightful owner. And hence it is said by
Martian, that according to the law of nations, restitution
may be demanded, of those, who have no legal title to
the possession. From the same origin springs the maxim
of Ulpian, that whoever has found a thing belonging to
another, is bound to restore it, even without claiming or
receiving a reward for finding it. The profits also are
to be restored, with a deduction only of reasonable
charges.
II. Respecting things, non-existent, or whose identity
cannot be ascertained, is a principle generally received
among mankind, that the person, who has become richer
by that property, of which the rightful owner has been
dispossessed, is bound to make him reparation in propor
tion to the benefit, which he has derived from his prop
erty. For the true proprietor may be justly said to have
lost, what HE has gained. Now the very introduction of
property was intended to preserve that equality, which
assigns to every one his own.
Cicero has said, that it is contrary to natural justice,
for one man to improve his own advantage at the expence
of another, and in another place, that nature does not
allow us to increase our resources, riches, and power,
from the spoils of others. There is so much of equity
in this saying, that many legal writers have made it the
basis of their definitions, to supply the deficiency of the
strict letter of the law, always appealing to equity as
the most sure and clear rule of action.
If any one employ a slave, as his factor, to trade for
him, he is bound by the acts of that factor, unless he
has previously given notice that he is not to be trusted.
But even if such notice has been given, where the factor
has a property in the concern, or the master a profit,
the notice shall be deemed a fraud. For, says Proculus,
whoever makes an advantage from the loss of another is
guilty of a fraud; a term implying every thing repugnant
to natural justice and equity. He, who, at the instance
126 HUGO GROTIUS
of a mother, has put in bail for her son's advocate, has
no action on the case against the advocate for what is
called an assumpsit or undertaking. For it was not
strictly his business, which the advocate managed; the
bail was put in at the INSTANCE of the MOTHER. Yet
according to the opinion of Papinian, an action on the
case for the assumpsit, or undertaking will lie against
the advocate, because it is with the bailor's money that
he is discharged from the risque of the costs.
So a wife who has given to her husband money, which
she may by law demand again, has a personal action of
recovery against him, or an indirect action upon any
thing purchased with the money. Because, as Ulpian
says, it cannot be denied, that the husband has been
made richer by it, and the question is, whether what he
possesses belongs to his wife ?
If I have been robbed by my slave, and any one has
spent the money under the supposition that it was the
slave's own property, an action may be maintained against
that person, as being unjustly in possession of my prop
erty. According to the Roman laws, minors are not
answerable for money borrowed. Yet if a minor has
become richer by the loan, an indirect action will lie
against him, or, if anything, belonging to another, has
been pawned and sold by a creditor, the debtor should
be released from the debt in proportion to what the
creditor has received. Because, says Tryphoninus, what
ever the obligation may be, since the money raised
accrued from the debt, it is more reasonable that it
should redound to the benefit of the debtor than the
creditor. But the debtor is bound to indemnify the pur
chaser, for it would not be reasonable that he should
derive gain from another's loss. Now if a creditor, hold
ing an estate in pledge for his money, has received from
it rents and profits amounting to more than his real
debt; all above that shall be considered as a discharge
of so much of the principal.
But to proceed with other cases. If you have treated
with my debtor, not supposing him to be indebted to
me, but to another person, and have borrowed my money
of him, you are obliged to pay me; not because I have
lent you money; for that could only be done by mutual
consent; but because it is reasonable and just, that my
money, which has come into your possession, should be
restored to me.
THE RIGHTS OF WAR AND PEACE 127
The later writers on the law have adduced this kind of
reasoning in support of similar cases. Thus, for instance,
if the goods of any one, who has been cast through de
fault, have been sold, if he can make any good exception
to the decision, he shall be entitled to the money arising
from such sale. Again, when any one has lent money
to a father for the maintenance of his son; if the
father should become insolvent, he may bring an action
against the son, provided the son is possessed of any
thing through his mother.
These two rules being perfectly understood, there will
be no difficulty in answering the questions ofter proposed
by Lawyers and Theologians on such subjects.
III. In the first place it appears, that a person who
has obtained possession of goods by fair means, is not
bound to restitution, if those goods have perished, be
cause they are no longer in his possession, nor has he
derived any advantage from them. The case of unlawful
possession which is left to the punishment of the law is
entirely out of the question.
IV. In the next place a bona-fide possessor of a thing
is bound to a restitution of the fruits or profits thereof
remaining in his hand. The FRUITS or PRODUCE of the
THING ITSELF are here meant. For the benefit derived
from a thing owing to the industry bestowed upon it by
the occupier thereof, cannot belong to the thing itself,
though originally proceeding from it. The reason of this
obligation arises from the institution of property. For
the true proprietor of a possession is naturally proprietor
of the fruits or produce of the same.
V. Such possessor in the third place is bound to make
restitution of the thing, or reparation for the consump
tion of it occasioned by his possession. For he is con
ceived to have been made the richer thereby. Thus
Caligula is praised for having, in the beginning of his
reign, restored to different Princes along with their
crowns, the intermediate revenues of their kingdoms.
VI. In the fourth place, an occupier of lands, for in
stance, is not bound to make a compensation for the
produce thereof which he has not reaped. For if dis
possessed, he has neither the thing itself, nor any thing
in the place of it.
VII. In the fifth place, a possessor who has granted
to a third person a thing of which a gift had been made
to himself, is not bound to make a recompence to the
128 HUGO GROTIUS
original giver, unless he received it under stipulation,
that if he granted it to a third person, and thereby spared
his own property, he should make a return proportionable
to such gain.
VIII. Sixthly, if any one has sold a thing which he
has bought, he is not bound to restitution of more than
the surplus arising from the sale. But if he had received
it under stipulation to sell, he is bound to make restitu
tion of the whole price, unless, in transacting the sale
he has incurred an expence, amounting to the whole
price, which he would not otherwise have done.*
IX. Seventhly, a bona-fide purchaser of what belongs
to another is obliged to make restitution to the real
owner, nor can the price he paid be recovered. To this
however there seems to be one exception, which is, where
the owner could not have recovered possession without
some expence ; so for instance, if his property were in
the hands of pirates. For then a deduction may be made
of as much as the owner would willingly have spent in
the recovery. Because the actual possession, especially
of a thing difficult to be recovered, may be ascertained,
and the owner deemed so much the richer by such re
covery. And therefore, though in the ordinary course of
law, the purchase of what belongs to one's self can never
constitute a bargain, yet Paulus the Lawyer says, that it
may do so, if it has been originally agreed that we are
to pay for the re-possession of what another has belong
ing to us in his hands.
Nor is it in the least material, whether a thing has
been bought with an intention of restoring* it to the
owner; in which case, some say, that an action for costs
may be maintained, whilst others deny it. For an action
on the case, to recover a compensation for business done
arises from the artificial rules of CIVIL LAW, and not solely
* The following extracts from Blackstone's Com. b. ii. ch. xxx. will
elucidate the meaning of our author in this place. <( Sale or EXCHANGE
is a transmutation of property from one man to another, in consideration
of some price or recompense ; for there is no sale with out a recompence.^
P. 446.
(( Where the vendor HATH in himself the property of the goods sold, he
hath the liberty of disposing of them to whom ever he pleases, at any
time, and in any manner. >} Ibid. 446.
(< And notwithstanding any number of intervening sales, if the origi
nal vendor, who sold without having the property, comes again into
possession of the goods, the original owner may take them, when found
in his hands who was guilty of the first breach of justice. » Ibid. p. 450.
THE RIGHTS OF WAR AND PEACE 129
from the simple dictates of natural justice; which are
here the principal subject of inquiry.
Not unlike to this is what Ulpian has written on funeral
expences, in which he says, that a compassionate judge
will not rigidly regard the bare labour that has been
given, but allowing some relaxation in favour of equity,
will shew indulgence to the feelings of human na
ture.
The same writer, in another place has said, that if any
one has transacted my business, not out of regard to me,
but for his own interest, and has incurred expence on
my account, he may bring an action on the case, not for
what he has given, but for what I have gained by his
labour and expence.
In the same manner, owners, by throwing whose goods
overboard a ship has been lightened, may recover a com
pensation from others whose goods were by that means
saved. Because those persons are considered so much
the richer by the preservation of what would otherwise
have been lost.
X. Eighthly, the person that has bought a thing of one,
who is not the owner, cannot return it to that seller;
because from the time that the thing came into his pos
session, he incurred an obligation to restore it to the
lawful owner.
XI. Again, if any one is in possession of a thing,
whose real owner is unknown, he is not naturally, and
necessarily bound to give it to the poor; although this
may be considered as an act of piety, a custom very
properly established in some places. The reason of which
is founded on the introduction of property. For, in con
sequence of that, no one except the real owner, can claim
a right to any thing. To the person therefore, who can
not discover such an owner, it is the same as if there
really were none.
XII. Lastly, a person is not obliged by the law of
nature to restore money, which has been received upon
a dishonest account, or for the performance of a legal
act, to which that person was of himself bound. How
ever it is not without reason that some laws have required
restitution in such cases. The reason of this is, because
no one is bound to part with any thing unless it belongs
to another. But here the property is voluntarily trans
ferred by the first owner.
The case will be altered, if there be any thing iniquitous
9
i3o HUGO GROTIUS
in the manner of acquiring" the thing; as if, for instance,
it be gained by extortion. This gives rise to the obliga
tion of submitting to penalties, which is not immediately
to the present purpose.
XIII. The present subject may be concluded with a
refutation of Medina's false opinion, that a property in
things, belonging to another, may be transferred without
consent of the owner; provided the things are such as
are usually valued by weight, number and measure. Be
cause things of that nature can be repaid in kind, or by
an equivalent. But this is only, where such a mode of
repayment has been previously agreed upon; or where
it is understood to be established by law or custom ; or
where the thing itself has been consumed, and cannot be
identically restored. But without such consent, either
expressed or implied, or excepting the impossibility just
mentioned, the things themselves must be restored.
CHAPTER XI.
ON PROMISES.
Opinion, that the obligation to fulfil promises is not enacted by the
law of nature, refuted — A bare assertion not binding — A promiser
bound to fulfil his engagements, though no right to exact the per
formance of them, is thereby conveyed to another — What kind of
promise gives such right — The promiser should possess the right
<' use of reason — Difference between natural and civil law with respect
to minors — Promises made under an error, or extorted by fear,
how far binding — Promises valid, if in the power of the promiser
to perform them — Promise made upon unlawful considerations,
whether binding — Manner of confirming the promises made by
others, and the conduct of Ambassadors who exceed their instruc
tions, considered — Owners of ships, how far bound by the acts of
the masters of such vessels, and merchants by the acts of their
factors — Acceptance requisite to give validity to a promise — Prom
ises sometimes revokable — The power of revoking a promise,
explained by distinctions — Burdensome conditions annexed to a
promise — Means of confirming invalid promises — Natural obliga
tion arising from engagements made for others.
I. THE course of the subject next leads to an inquiry
into the obligation of promises.* Where the first object,
that presents itself, is the opinion of Franciscus Connanus,
a man of no ordinary learning. He maintains an opinion
that the law of nature and of nations does not enforce
the fulfilment of those agreements, which do not include
an express contract, f Yet the fulfilment of them is right,
in cases, where, even without a promise, the performance
would be consonant to virtue and equity. In support of
his opinion, he brings not only the sayings of Lawyers,
but likewise the following reasons. He says, that the
person, who makes, and he who believes, a rash promise.
* <( A promise is in the nature of a verbal covenant, and wants noth
ing but the solemnity of writing and sealing to make it absolutely the
same. If therefore it be to do any explicit act, it is an express con
tract, as much as any covenant; and the breach of it is an equal injury. w
— Blackst. Com. b. iii. ch. ix. sect. 3.
f All the reasonings of Grotius, on this, and on every other point,
are intended to apply not only to the transactions of individuals, but
to the conduct and affairs of nations.
(I3D
1 32 HUGO GROTIUS
are equally to blame. For the fortunes of all men would
be in imminent danger, if they were bound by such
promises, which often proceed from motives of vanity
rather than from a settled deliberation, and are the result
of a light and inconsiderate mind. Lastly, the perform
ance of whatever is any way just in itself, ought to be
left to the free will of every one, and not exacted accord
ing to the rigid rules of necessity. He says that it is
shameful not to fulfil promises; not because it is unjust,
but because it argues a levity in making them.
In support of his opinion, he appeals also to the testi
mony of Tully, who has said, that those promises are not
to be kept, which are prejudicial to the person to whom
they are made, nor, if they are more detrimental to the
giver than beneficial to the receiver. But if the perform
ance of an engagement is begun upon the strength of a
promise, but not finished, he does not require a complete
fulfilment of the promise, but only some compensation to
the party for the disappointment. Agreements, he contin
ues, have no intrinsic force of obligation, but only what
they derive from the express contracts, in which they
are included, or to which they are annexed, or from the
delivery of the thing promised. From whence arise
actions, on the one side, and exceptions on the other, and
bars to all claims of recovery.
But it is through favour of the laws alone, which give
the efficacay of obligation to what is only fair and equit
able in itself, that obligatory agreements, such as express
covenants and other things of that kind, derive their force.
Now there is no consistency in this opinion, taken in
the general sense intended by its author. For in the
first place it immediately follows from thence, that there
is no force in treaties between kings and different nations,
till some part of them be carried into execution, espe
cially in those places, where no certain form of treaties
or compacts has been established. But no just reason
can be found, why laws, which are a kind of general
agreement among a people, and indeed are called so by
Aristotle, and Demosthenes, should be able to give the
force of obligation to compacts, and why the will of an indi
vidual, doing every thing to bind himself, should not have
the same power; especially where the civil law creates
no impediment to it. Besides, as it has been already said
that the property of a thing may be transferred, where a
sufficient indication of the will is given. Why may we
THE RIGHTS OF WAR AND PEACE 133
not then convey to another the right to claim a transfer
of our property to him, or the fulfilment of our engage
ments, as we have the same power over our actions, as
over our property ?
This is an opinion confirmed by the wisdom of all ages.
For as it is said by legal authorities, that since nothing is so
consonant to natural justice, as for the will of an owner,
freely transferring his property to another, to be confirmed,
so nothing is more conducive to good faith among men,
than a strict adherence to the engagements they have made
with each other. Thus a legal decision for the payment
of money, where no debt has been incurred, except by
the verbal consent of the party promising, is thought con
formable to natural justice. Paulus the Lawyer also says,
that the law of nature and the law of nations agree in
compelling a person , who has received credit, to payment.
In this place the word, COMPELLING, signifies a moral obli
gation. Nor can what Connanus says be admitted, which
is, that we are supposed to have credit for a full per
formance of a promise, where the engagement has been
in part fulfilled. For Paulus in this place is treating of
an action where nothing is due; which action is entirely
void, if money has been paid, in any way, whether accord
ing to the manner expressly stipulated, or any other. For
the civil law, in order to discourage frequent causes of
litigation, does not interfere with those agreements which
are enforced by the law of nature and of nations.
Tully, in the first book of his Offices, assigns such
force to the obligation of promises, that he calls fidelity
the foundation of justice, which Horace also styles the
sister of justice, and the Platonists often call justice,
TRUTH, which Apuleius has translated FIDELITY, and
Simonides has defined justice to be not only returning
what one has received, but also speaking the truth.
But to understand the matter fully, we must carefully
observe that there are three different ways of speaking,
respecting things which ARE, or which, it is supposed,
WILL be in our power.
II. The first of these ways is, where an assurance is
given of future intentions, and if the assurance be
SINCERE at the time it is given, though it should not be
carried into effect, no blame is incurred, as it might
afterwards not be found expedient. For the human
mind has not only a natural power, but a right to change
its purpose. Wherefore if any blame attaches to a change
134 HUGO GROTIUS
of opinion, or purpose, it is not to be imputed to the
BARE ACT OF CHANGING, but to the CIRCUMSTANCES, Under
which it happens, especially when the former resolution
was the best.
III. The second way is, when future intentions are
expressed by outward acts and signs sufficient to indicate
a resolution of abiding by present assurances. And these
kind of promises may be called imperfect obligations,
but conveying to the person to whom they are given no
RIGHT to exact them. For it happens in many cases that
we may be under an obligation of duty, to the perform
ance of which another has no right to compel us. For
in this respect the duty of fidelity to promises, is like
the duties of compassion and gratitude. In such kinds
of promises therefore the person to whom they are made,
has no right, by the law of nature to possess himself of
the effects of the promiser, as his own, nor to COMPEL
him to the performance of his promise.
IV. The third way is, where such a determination is
confirmed by evident signs of an intention to convey a
peculiar right to another, which constitutes the perfect
obligation of a promise, and is attended with consequences
similar to an alienation of property.
There may be two kinds of alienation, the one of our
property, the other of a certain portion of our liberty.
Under those of the former kind we may class the prom
ises of gifts, and under the latter the promises of doing
certain actions. On this subject we are supplied with
noble arguments from the divine oracles, which inform
us, that God himself, who can be limited by no estab
lished rules of law, would act contrary to his own nature,
if he did not perform his promises. From whence it
follows that the obligations to perform promises spring
from the nature of that unchangeable justice, which is
an attribute of God, and common to all who bear his
image, in the use of reason. To the proofs of scripture
here referred to, we may add the judgment of Solomon,
<( My son if thou hast been surety for thy friend, thou
hast tied up thy hands to a stranger; thou art ensnared
by the words of thy mouth, then art thou taken by the
words of thine own mouth. }> Hence a promise is called by
the Hebrews a bond or chain, and is compared to a vow.
Eustathius in his notes on the second book of the Iliad,
assigns a similar origin to the word uTtoff/effsw? or engage
ment. For he who has received the promise, in some
THE RIGHTS OF WAR AND PEACE 135
measure takes and holds the person, that has made the
engagement. A meaning not ill expressed by Ovid in
the second book of his Metamorphoses, where the prom-
iser says to him, to whom he had promised, (( My word
has become yours. )}
After knowing this, there remains no difficulty in re
plying to the arguments of Connanus. For the expres
sions of the lawyers, respecting BARE PROMISES, refer only
to what was introduced by the Roman laws, which have
made a FORMAL STIPULATION the undoubted sign of a
deliberate mind.
Nor can it be denied that there were similar laws
among other nations. For Seneca, speaking of human
laws, and promises made without proper solemnities, says,
<( What law, of any country, we may add, obliges us to
the performance of bare promises ? w But there may
naturally be other signs of a deliberate mind, besides a
formal stipulation, or any other similar act which the
civil law requires, to afford grounds for a legal remedy.
But what is not done with a deliberate mind, we are
inclined to believe does not come under the class of per
fect obligations; as Theophrastus has observed in his
book on laws. Nay, even what is done with a deliberate
mind, but not with an intention of conceding oivr own
right to another; though it cannot give any one a
natural right of exacting its fulfilment, yet it creates an
obligation not only in point of duty, but in point of
moral necessity. The next matter to be considered is,
what are the requisites to constitute a perfect promise.
V. The use of reason is the first requisite to constitute
the obligation of a promise, which ideots, madmen, and
infants are consequently incapable of making. The case
of minors is somewhat different. For although they may
not have a sound judgment, yet it is not a permanent
defect, nor sufficient of itself to invalidate all their acts.
It cannot be certainly defined at what period of life
reason commences. But it must be judged of from daily
actions, or from the particular customs of each country.
Amongst the Hebrews a promise made by a male at the
age of thirteen, and by a female at the age of twelve,
was valid. In other nations, the civil laws, acting upon
just motives, declare certain promises made by wards
and minors to be void, not only among the Romans, but
among the Greeks also, as it has been observed by Dion
Chrysostom in his twenty-fifth oration. To do away the
136 HUGO GROTIUS
effect of improvident promises, some laws introduce
actions of recovery, or restitution. But such regulations
are peculiar to the civil law, and have no immediate con
nection with the law of nature and of nations, any farther
than that wherever they are established, it is consonant
to natural justice that they should be observed. Where
fore if a foreigner enter into an agreement with a citizen
or subject of any other country; he will be bound by
the laws of that country, to which, during his residence
therein, he owes a temporary obedience. But the case is
different, where an agreement is made upon the open
sea, or in a desert island, or by letters of correspondence.
For such contracts are regulated by the law of nature
alone, in the same manner as compacts made by sover
eigns in their public capacity.
VI. The consideration of promises, made under an er
ror, is a subject of some intricacy. For it, in general,
makes a difference, whether the promiser knew the full
extent of his promise, and the value of the thing prom
ised, or not, or whether the contract, which was made,
originated in fraudulent intention, or not, or whether one
of the parties was privy to the fraud; and whether the
fulfilment of it was an act of strict justice, or only of
good faith. For according to the variety of these cir
cumstances, writers pronounce some acts void and oth
ers valid, leaving the injured party a discretionary power
to rescind or amend them.
Most of these distinctions originate in the ancient civil,
and praetorian Roman law. Though some of them are
not strictly founded in reason and truth. But the most
obvious and natural way of discovering the truth is by
referring to laws, which derive their force and efficacy
from the general consent of mankind; so that if a law
rests upon the presumption of any fact, which in reality
has no existence, such a law is not binding. For when
no evidence of the fact can be produced, the entire founda
tion, on which that law rests must fail. But we must
have recourse to the subject, to the words and circum
stances of a law, to determine when it is founded on such
a presumption.*
* « The most universal and effectual way of discovering the true mean
ing of a law, when the words are dubious, is by considering the REA
SON and SPIRIT of it, or the cause which moved the legislator to enact it.
For when the reason ceases, the law itself ought likewise to cease with
it.»— Blackst. Introd. Com. ch. 2. p. 16.
THE RIGHTS OF WAR AND PEACE 137
The same rule applies to the interpretation of prom
ises. For where they are made upon the supposition of
a fact, which in the end proves not to be true, they lose
the force of obligations. Because the promiser made
them upon certain conditions only, the fulfilment of which
becomes impossible. Cicero, in his first book on the tal
ents and character of an orator, puts the case of a father,
who, under the supposition or intelligence that his son
was dead, promised to devise his property to his nephew.
But the supposition proving erroneous, and the intelli
gence false, the father was released from the obligation
of the promise made to his relative. But if the promiser
has neglected to examine the matter, or has been care
less in expressing his meaning, he will be bound to re
pair the damage which another has sustained on that
account. This obligation is not built on the strength of
the promise, but on the injury, which it has occasioned.
An erroneous promise will be binding, if the error was
not the OCCASION of the promise. For here there is
no want of consent in the party, who made it. But if
the promise was obtained by fraud, the person so obtain
ing it shall indemnify the promiser for the injury sus
tained, if there has been any partial error in the promise,
yet in other respects it shall be deemed valid.
VII. Promises extorted by fear are a subject of no less
intricate decision. For here too a distinction is usually
made between a well founded and a chimerical fear,
between a just fear and a bare suspicion, and between
the persons who occasion it, whether it be the person to
whom the promise is given, or some other. A distinction
is also made between acts purely gratuitous, and those
in which both parties have an interest. For according to
all this variety of circumstances some engagements are
considered as void, others as revocable at the pleasure
or discretion of the maker, and others as warranting a
claim to indemnity for the inconvenience occasioned.
But on each of these points there is great diversity of
opinion.
There is some shew of reason in the opinion of those
who, without taking into consideration the power of the
civil law to annul or diminish an obligation, maintain
that a person is bound to fulfil a promise which he has
given under impressions of fear. For even in this case
there was CONSENT, though it was extorted; neither was
it conditional, as in erroneous promises, but absolute.
138 HUGO GROTIUS
It is called CONSENT. For as Aristotle has observed,
those who consent to throw their goods overboard in a
storm, would have saved them, had it not been for the
fear of shipwreck. But they freely part with them con
sidering all the circumstances of time and place.
VIII. To render a promise valid, it must be such as
it is in the power of the promiser to perform. For which
reason no promises to do illegal acts are valid; because
no one either has, or ever can have a right to do them.
But a promise, as was said before, derives all its force
from the right of the promiser to make it, nor can it
extend beyond that.
If a thing is not now in the power of the promiser,
but may be so at some future time; the obligation will
remain in suspense. For the promise was only made
under the expectation of some future ability to fulfil it.
But if a person has a controul over the condition upon
which the promise is made, to realise it or not, he lies
under a moral obligation to use every endeavour to fulfil
it. But in obligations of this kind also, the civil law,
from obvious motives of general utility, occasionally in
terposes its authority to make them void: obligations,
which the laiv of nature would have confirmed.
IX. The next general inquiry, for the most part, re
fers to the validity of promises made upon any immoral
or unlawful consideration ; as if, for instance, any thing is
promised to another on condition of his committing a
murder. Here the very promise itself is wicked and
unlawful, because it encourages the commission of a
crime. But it does not follow that every FOOLISH or IM
PROVIDENT promise loses the force of an obligation, as in
the confirmation of imprudent or prodigal grants, for no
further evil can result from a confirmation of what has
been already given : and the invalidity of promises would
be a greater evil than any that could result from a con
firmation of the most improvident. But in promises made
upon IMMORAL and UNLAWFUL considerations, there is al
ways a criminality remaining, even while they continue
unfulfilled. For during the whole of that time, the ex
pectation of fulfilment carries with it the indelible mark
of encouragement to the commission of a crime.
XII.* We are obliged to confirm the engagements made
by others, acting in our name, if it is evident that they
* Sections X, and XI. of the original are omitted in the transla
tion. — TRANSLATOR.
THE RIGHTS OF WAR AND PEACE 139
had special, or general instructions from us to do so.
And in granting a commission with full powers to any
one, it may so happen that we are bound by the con
duct of that agent, even if he exceed the secret instruc
tions which he has received. For he acts upon that
ostensible authority, by which we are bound to ratify
whatever he does, although we may have bound him to
do nothing but according to his private instructions.
This rule, we must observe, applies to the promises
made by ambassadors in the name of their sovereigns,
when, by virtue of their public credentials, they have
exceeded their private orders.
XIII. From the preceding arguments, it is easy to un
derstand how far owners of ships are answerable for the
acts of the masters employed by them in those vessels,
or merchants for the conduct of their factors. For nat
ural equity will qualify the actions brought against
them, according to the instructions and powers which
they give. So that we may justly condemn the rigour
of the Roman law, in making the owners of ships ab
solutely bound by all the acts of the masters em
ployed. For this is neither consonant to natural equity,
which holds it sufficient for each party to be answerable
in proportion to his share, nor is it conducive to the
public good. For men would be deterred from employ
ing ships, if they lay under the perpetual fear of being
answerable for the acts of their masters to an unlimited
extent. And therefore in Holland, a country where trade
has flourished with the greatest vigour, the Roman law
has never been observed either now or at any former
period. On the contrary, it is an established rule that
no action can be maintained against the owner for any
greater sum than the value of the ship and cargo.
For a promise to convey a right, acceptance is no less
necessary than in a transfer of property. And in this
case there is supposed to have been a precedent request,
which is the same as acceptance. Nor is this contra
dicted by the promises which the civil law implies every
one to have made to the state, WITHOUT ANY REQUEST OR
FORMAL ACCEPTANCE.
XIV. A reason which has induced some to believe that
the sole act of a promiser, by the law of nature, is suffi
cient. Our first position is not contradicted by the
Roman law. For it no where says, that a promise has
its full effect before acceptance, but only forbids the
140 HUGO GROTIUS
revocation of it which might prevent acceptance: and
this effect results, not from NATURAL but from purely
LEGAL rules.
XV. Another question is, whether the acceptance alone
of a promise is sufficient, or whether it ought to be
communicated to the promiser before it can be made
binding.
It is certain that a promise may be made two ways,
either upon condition of its being fulfilled, if accepted,
or upon condition of its being ratified, if the promiser is
apprised of its being accepted. And in cases of mutual
obligation, it is presumed to be taken in the latter sense ;
but it is better to take promises that are purely gratui
tous in the former sense, unless there be evidence to the
contrary.
XVI. From hence it follows, that a promise may be
revoked, without the imputation of injustice or levity,
BEFORE ACCEPTANCE, as no right has yet been conveyed;
especially if ACCEPTANCE were made the condition of its
being fulfilled. It may be revoked too if the party to
whom it was made, should die before acceptance. Be
cause it is evident that the power to accept it or not,
was conferred upon HIM, and not upon his HEIRS. For to
give a man a right, which may POSSIBLY descend to his
heirs, is one thing, and to express an intention of giving
it to his heirs is another. For it makes an essential
difference upon what person the favour is conferred. This
is understood in the answer made by Neratius, who said,
that he did not believe the prince would have granted to
one who was dead, what he granted, supposing him still
alive.
XVII. A promise may be revoked, by the death of the
person appointed to communicate to a third the inten
tion of the promiser. Because the obligation to the third
person rested upon such communication. The case is
different, where a public messenger is employed, who is
not himself the obligatory instrument, but only the
means through which it is conveyed. Therefore letters
indicating a promise, or consent may be conveyed by any
one. Yet there is a distinction to be made between a
minister appointed to communicate a promise, and one
appointed to make the promise in his own name.
For in the former case, a revocation will be valid, even
though it has not been made known to the minister em
ployed; but in the latter case, it will be entirely void,
THE RIGHTS OF WAR AND PEACE 141
because the right of promising was committed to the
minister, and fully depended upon his will ; therefore the
obligation of the promise was complete, as he knew of
no intended revocation. So also in the former case,
where a second person is commissioned to communi
cate the intentions of a donor to a third; even if the
donor should die, the acceptance of the gift will be
deemed valid, all that was requisite being performed on
one part; though till that period the intention was revo
cable, as is evident in the case of bequests. But in the
other case, where a person has received a full commission
to execute a promi.se during the LIFE of the donor, should
the donor die before the execution of it, and the person
employed be apprised of his death; the commission, the
promise, and the acceptance of it will then, at once, be
come void.
In doubtful cases, it is reasonable to suppose that it
was the intention of the promiser, that the commission
which he gave should be executed, unless some great
change, as for instance, his own death should occur.
Yet reasons in favour of a contrary opinion may easily be
found and admitted, especially with respect to pious do
nations, which, at all events, ought to stand good. And
in the same manner may be decided the long disputed
question, whether an action on account of such a bequest
could be brought against the heir. Upon which the
author of the second book to Herennius says, that Mar
cus Drusus the praetor decided one way, and Sextus
Julius another.
XVIII. The acceptance of a promise for a third per
son is a matter subject to discussion, in which there is
a distinction to be observed between a promise made to
a person of a thing, which is to be given to another,
and a promise made directly to the person himself, on
whom the former is to be conferred. If a promise is made
to any one, where his own personal interest is not con
cerned, a consideration introduced by the Roman law,
by acceptance he seems naturally to acquire a right
which may be transferred to another for HIS acceptance,
and this right will pass so fully, that in the mean time
the promise cannot be revoked by the person who gave,
though it may be released by him who received it. For
that is a meaning by no means repugnant to the law of
nature, and it is entirely conformable to the words of such
a promise; nor can it be a matter of indifference to
H2 HUGO GROTIUS
the person, through whom another is to receive a bene
fit.
But if a promise is made directly to one, on whom a
thing is to be conferred, a distinction must be made,
whether the person receiving such a promise has SPECIAL
commission for acceptance, or one so GENERAL as to in
clude acceptance, or has it not. When a commission has
been previously given, no farther distinction is necessary,
whether the person be free or not, a condition which
the Roman laws require. But it is plain that from such
an acceptance, let the condition of the person be what
it will, the promise is complete : because consent may be
given and signified through the medium of another. For
a person is supposed to have fully intended, what he
has put into the power of another to accept or refuse.
Where there is no such commission, if another, to
whom the promise was not directly made, accepts it with
the consent of the promiser, the promise will be so far
binding, that the promiser will not be at liberty to
revoke it, before the person, in whose favour it was
made has ratified, and afterwards chosen to release the
engagement. Yet, in the mean time, the accepter can
not release it, as having derived no peculiar right from
it himself, but only been used as an instrument in pro
moting the kind intentions and good faith of the promiser.
The promiser therefore himself, by revoking it, is not
doing violence to the perfect right of another, but only
acting in contradiction to his own good faith.
XIX. From what has been said before, it is easy to
conceive what opinion ought to be entertained of a bur
densome condition annexed to a promise. For it may
be annexed at any time, till a promise has been com
pleted by acceptance, or an irrevocable pledge to fulfil
it has been given. But the condition of a burden annexed
to a favour intended to be conferred upon a third per
son, through the medium of any one, may be revoked
before the person has confirmed it by his acceptance.
On this point there is great difference of opinion. But
upon impartial consideration the natural equity of any
case may be easily seen without any great length of
arguments.
XX. XXI. XXII. Another point of discussion relates to
the validity of an erroneous promise, when the person,
who made it, upon being apprised of his error is willing
to adhere to his engagement. And the same inquiry
THE RIGHTS OF WAR AND PEACE 143
applies to promises, which , arising out of fear or any other
such motive, are prohibited by the civil law. What, it
may be asked, will become of these promises, if that fear,
or that motive has been removed ?
To confirm such obligations, some think an internal
consent of the mind alone in conjunction with some pre
vious external act is sufficient. Others disapprove of this
opinion, because they do not admit that an external act
is a real sign of a subsequent intention. Therefore they
require an express repetition of the promise and accept
ance. Between these two opinions, the truth is most
likely to be found. There may be an external act ex
pressive of a promise, though unaccompanied with words;
where one party's accepting and retaining a gift, and the
other's relinquishing his right in it are sufficient to con
stitute a full consent.
To prevent civil laws from being confounded with nat
ural justice, we must not omit noticing, in this place,
that promises though founded in no EXPRESS motive, are
not, any more than gifts, void by the law of nature.
Nor is a person who has engaged for another's per
forming any thing, bound to pay damages and interest
for neglect, provided he has done every thing that was
necessary on his part towards obtaining its accomplish
ment. Unless the express terms of the agreement, or the
nature of the business require a stricter obligation, posi
tively declaring that, under all circumstances whatever,
the thing shall be performed.
CHAPTER XII.
ON CONTRACTS.
Human actions divided into simple or mixed — Gratuitous, or accom
panied with mutual obligation — Acts by way of exchange, adjust
ment of what is to be given or done — Partnership — Contracts —
Previous equality — As to knowledge of all circumstances — As to
freedom of consent, requisite in contracts of exchange, of sale, of
commission and loan — Price of things in what manner to be rated
— Transfer of property by sale — What kind contrary to the law of
nature — Money — Its use as the standard value of all things — No
abatement in the rent or hire of a thing on account of ordinary acci
dents — Increase or diminution of just salaries — Usury, by what
law forbidden — Interest not coming under the name of usury — In
surance — Partnerships of Trade, Naval Associations — Inequality in
the terms of a contract no way repugnant to the law of nations.
I. and II. OF ALL human actions, wherein the interest
of others is concerned, some are simple, and some are
mixed. In those of the former description all service
is purely gratuitous, but in the latter it is a traffic of
exchange. In the one case the service is granted with
out a requital, but in the other it is accompanied with
an obligation on both sides. Gratuitous services are either
immediate in their effect, or to take place at some future
time. A beneficial service may be said to be immedi
ately performed, when it confers an advantage, to which
the person so benefitted has no direct or absolute right.
As a gift transfers property, where there is no previous
right. A subject, which has been already discussed. And
promises may be said to relate to some future gift, or
action, of which a full and sufficient explanation has be
fore been given.
Services accompanied with mutual obligation are those
where the use of a thing is allowed to any one without
a complete alienation, or where labour is given in ex
pectation of some valuable consideration. Under the
first of these heads we may reckon the loan and use of
all consumable or inconsumable property: and under the
latter we may place all commissions to transact business,
or all trusts to preserve the property of another. Simi
lar to which are all promises of something to be done,
except that they regard a future time. And in this view
(144)
THE RIGHTS OF WAR AND PEACE 145
we may consider all the actions, which are now to be
explained.
III. In all acts of exchange, there is either an adjust
ment of shares, or the profits are regarded as a common
stock. And such adjustments are made by the Roman
Lawyers in the following terms, c( I give this to receive
that in return, I do this in order for you to do that, or
I do this for you to give me that."* But the Romans
exclude from that adjustment certain kinds of contracts,
which they call EXPRESS ENGAGEMENTS. Not because they
are entitled to any such peculiar name more than the
simple acts of exchange already mentioned: but because
from frequent use they have naturally derived a char
acter similar to that of the original contract, from which
they are named, though they are not attended exactly
with the same circumstances, nor expressed directly in
the same terms. Whereas in other contracts less fre
quently in use, the form was confined to an exact state
ment of all the circumstances of the case. An action
upon which was therefore called by the Roman law an
ACTION IN PRESCRIBED WORDS.
For the same reason, if those contracts, which are in
general use, be accompanied with any of the requisite
formalities, as in a bargain or sale, if the jprice had been
agreed upon, though no part of the agreement had been
performed by either of the parties, the civil law en
forced an obligation to fulfil them. But as it considers
those contracts which are seldom used, more in the light
of voluntary engagements, depending upon the good faith
of the respective parties, than upon legal obligation, it
leaves both sides at liberty to relinquish them at any
time prior to their being naturally performed.
Distinctions of this kind are unknown to the law of
nature, which gives SIMPLE AGREEMENTS equal authority
with those, that are included by civilians in the class of
EXPRESS CONTRACTS. And on the score of antiquity their
pretensions are far superior. It is therefore perfectly
conformable to the principles of nature to reduce the
adjustment of all agreements, without any regard to the
distinction between SIMPLE and EXPRESS CONTRACTS, to
the three species already named. Thus, for instance,
* From this simple origin of barter, and exchange of things have
arisen all the various transactions of commerce. And what was at
first an act of necessity between individuals, has proved an inexhausti
ble source of wealth and prosperity to nations.
10
146 HUGO GROTIUS
one thing is given for another, which constitutes barter,
the most ancient kind of traffic; the next step in the
progress of commercial intercourse is where one kind of
money is given for another, a transaction which by mer
chants is called exchange ; and a third species of contract
is where money is given for any thing, as in the acts of
selling and buying. Or the USE of one thing may be given
for that of another; money also may be given for the
USE of a thing, which last method constitutes the acts of
letting and hiring.
The term use is to be understood here as applied not
only to the bare unproductive use of a thing, but to that
which is attended with profit, whether it be temporary,
personal, hereditary or circumscribed, as was the case
among the Hebrews with regard to transfers, which could
be made for no longer a time than till the year of Jubi
lee. The very essence of a loan consists in a return of
the same kind of thing after a stated period. A return
which can take place only in things regulated by weight,
number, or measure, whether it be in commodities or
money. But the exchange of labour branches out into
various kinds of recompence or return. As, for instance,
a person gives his labour for money, which in the daily
transactions of life is called hire or wages: where one
undertakes to indemnify another for accidental losses or
damages, it is called insurance: a species of contract
scarce known to the ancients, but now forming a very im
portant branch in all mercantile and maritime concerns.
IV. Acts of communication are those, where each con
tributes a share to the joint stock. Perhaps on one side,
money, and on the other, skill and labour may be given.
But in whatever way these concerns are regulated, they
come under the denomination of partnerships. With this
class we may rank the alliances of different states in war.
And of the same description are those naval associations
of individuals, so frequently formed in Holland for pro
tection against pirates or other invaders, which is gener
ally called an ADMIRALTY, and to which the Greeks gave
the name of a joint fleet.
V. and VI. Now mixed actions are either such in them
selves, or made so by some adventitious circumstance.
Thus if I knowingly give one person a greater price for
a thing than I can purchase it for of another, the excess
of price may be considered partly as a gift, and partly as
a purchase. Or if I engage a goldsmith to make me any
THE RIGHTS OF WAR AND PEACE 147
article with his own materials, the price which I give will
be partly a purchase, and partly wages. The feudal sys
tem too might be considered as a train of mixed contracts.
Where the grant of the fee might be considered as a bene
ficial act; but the military service required by the Lord,
in return for his protection, gave the fee the nature of a
contract, where a person did one thing expecting for it
the performance of another. But if any payment is at
tached to it by way of acknowledgement, it partakes of
the nature of a quit rent. So money sent to sea by way
of venture is something compounded of a contract, of a
loan, and of an insurance.
VII. All acts beneficial to others, except those that
are purely gratuitous, come under the denomination of
contracts.
VIII. In all contracts, natural justice requires that
there should be an equality of terms: insomuch that the
aggrieved party has an action against the other for over
reaching him. This equality consists partly in the per
formance, and partly in the profits of the contract,
applying to all the previous arrangements, and to the
essential consequences of the agreement.
IX. As to an equality of terms previous to the contract,
it is evident that a seller is bound to discover to a
purchaser any defects, which are known to him, in a
thing offered for sale ; a rule not only established by
civil laws, but strictly conformable to natural justice.
For the words of agreement between contracting parties
are even stronger than those, on which society is founded.
And in this manner may be explained the observation
of Diogenes the Babylonian, who in discussing this topic
said, it is not every degree of silence, which amounts to
concealment; nor is one person bound to disclose every
thing, which may be of service to another. Thus for
instance, a man of science is not strictly bound to com
municate to another that knowledge, which might redound
to his advantage. For contracts, which were invented
to promote a beneficial intercourse among mankind, re
quire some closer and more intimate connection than
bare good-will to enforce their obligation. Upon which
Ambrose has justly remarked, ((that, in contracts, the
faults of things exposed to sale ought to be made known,
of which unless the seller has given intimation, though
he may have transferred the right of property by sale,
yet he is liable to an action of fraud. w
148 HUGO GROTIUS
But the same cannot be said of things not coming
under the nature of contracts. Thus if any one should
sell his corn at a high price, when he knows that many
ships laden with grain are bound for that place, though
it would be an act of kindness in him to communicate
such intelligence to the purchasers, and though no ad
vantage could be derived to him, from withholding the
communication, but at the expence of charity, yet there
is nothing unjust in it, or contrary to the general rules
of dealing. The practice is vindicated by Diogenes in
the passage of Cicero alluded to, he says, <( I carried my
commodities and offered them to sale, in selling them I
demanded no greater price than others did ; if the supply
had been greater I would have sold them for less, and
where is the wrong done to any one ? }> The maxim of
Cicero therefore cannot generally be admitted, that,
knowing a thing yourself, to wish another, whose inter
est it is to know it also, to remain ignorant of it, merely
for the sake of your own advantage, amounts to a fraud
ulent concealment. By no means; for that only is a
fraudulent concealment which immediately affects the
nature of the contract : as for instance, in selling a house,
to conceal the circumstance of its being infected with
the plague, or having been ordered by public authority
to be pulled down. But it is unnecessary to mention,
that the person, with whom a seller treats, ought to be
apprised of every circumstance attending the thing
offered for sale; if it be lands, whether the tenure be
subject to a rent-charge, or service of any kind, or be
entirely free.
X. and XL Nor is the equality that has been explained
confined solely to the communication of all the circum
stances of the case to the contracting parties, but it in
cludes also an entire freedom of consent in both.
In the principal act itself, the proper equality requires
that no more should be demanded by either party than
what is just. Which can scarce have a place in gratui
tous acts. To stipulate for a recompence in return for a
loan, or for the service of labour or commission is doing
no wrong, but constitutes a kind of mixed contract, par
taking of the nature of a gratuitous act, and an act of ex
change. And in all acts of exchange, this equality is to
be punctually observed. Nor can it be said that if one
party promises more, it is to be looked upon as a gift.
For men never enter into contracts with such intentions,
THE RIGHTS OF WAR AND PEACE 149
nor ought the existence of such intentions ever be pre
sumed, unless they evidently appear. For all promises
or gifts, in these cases, are made with an expectation of
receiving an equivalent in return. <( When, in the words
of Chrysostom, in all bargains and contracts, we are anx
ious to receive MORE and give LESS than is due, what is
this but a species of fraud or robbery ? }> The writer of
the life of Isidorus in Photius, relates of Hermias, that
when any thing, which he wished to purchase was valued
at too low a rate, he made up the deficiency of the price,
thinking that to act otherwise was a species of injustice,
though it might escape the observation of others. And
in this sense, may be interpreted the law of the He
brews.
XII. There remains another degree of equality to be
considered, arising out of the following case. It may
happen in contracts that although nothing is concealed,
which ought to be made known, nor more exacted or
taken by one party than is due, yet there may be some
inequality without any fault in either of the parties.
Perhaps, for instance there might be some unknown de
fect in the thing, or there might be some mistake in the
price. Yet, in such cases, to preserve that equality,
which is an essential requisite in all contracts, the party
suffering by such defect or mistake, ought to be indem
nified by the other. For in all engagements it either is,
or ought to be a standing rule, that both parties should
have equal and just advantages.
It was not in every kind of equality that the Roman
law established this rule, passing over slight occasions, in
order to discourage frequent and frivolous litigation. It
only interposed its judicial authority in weighty matters,
where the price exceeded the just value by one half.
Laws indeed, as Cicero has said, have power to compel, or
restrain men, whereas philosophers can only appeal to
their reason or understanding. Yet those, who are not
subject to the power of civil laws ought to comply with
whatever reason points out to them to be just: So too
ought they, who are subject to the power of human
laws, to perform whatever natural and divine justice re
quires, even in cases, where the laws neither give nor
take away the right, but only forbear to enforce it for
particular reasons.
XIII. There is a certain degree of equality, too, in
beneficial or gratuitous acts, not indeed like that prevail-
i5o HUGO GROTIUS
ing in contracts of exchange, but proceeding upon a sup
position of the hardship, that any one should receive
detriment from voluntary services, which he bestows.
For which reason a voluntary agent ought to be indem
nified for the expence or inconvenience, which he incurs,
by undertaking the business of another. A borrower too
is bound to repair a thing that has been damaged or
destroyed. Because he is bound to the owner not only
for the thing itself, by virtue of the property which he
retains in it, but he owes a debt of gratitude also for
the favour of the loan; unless it appears that the thing
so lent would have perished, had it even remained in
possession of the owner himself. In this case, the owner
loses nothing by the loan. On the other hand, the de
positary has received nothing but a trust. If the thing
therefore is destroyed, he cannot be bound to restore
what is no longer in existence, nor can he be required
to make a recompence, where he has derived no advan
tage ; for in taking the trust he did not receive a favour,
but conferred one. In a pawn, the same as in a thing
let out for hire, a middle way of deciding the obligation
may be pursued, so that the person taking it is not
answerable, like a borrower, for every accident, and yet
he is obliged to use greater care, than a bare depositary,
in keeping it safe. For though taking a pledge is a
gratuitous acceptance, it is followed by some of the con
ditions of a contract. All these cases are conformable to
the Roman law, though not originally derived from
thence, but from natural equity. Rules, all of which
may be found among other nations. And, among othei
works, we may refer to the third book and forty-second
chapter of the GUIDE FOR DOUBTFUL CASES, written by
Moses Maimonides, a Jewish writer.
Upon the same principles the nature of all other con^
tracts may be explained; but the leading features in those
of certain descriptions seemed sufficient for a treatise
like the present.
XIV. The general demand for any thing, as Aristotle
has clearly proved, constitutes the true measure of its
value, which may be seen particularly from the practice
prevailing among barbarous nations of exchanging one
thing for another. But this is not the only standard:
for the humours and caprice of mankind, which dictate
and controul all regulations, give a nominal value to many
superfluities. It was luxury, says Pliny, that first dis-
THE RIGHTS OF WAR AND PEACE 151
covered the value of pearls, and Cicero has somewhere
observed, that the worth of such things can only be
estimated by the desires of men.
But on the other hand, it happens that the plentiful
supply of necessaries lowers their price. This Seneca, in
the 1 5th chapter of his sixth book on benefits, proves by
many instances, which he concludes with the following
observation, <( the price of every thing must be regulated
by the market, and notwithstanding all your praises, it
is worth nothing more than it can be sold for." To
which we may add the authority of Paulus the Lawyer,
who says, the prices of things do not depend upon the
humours and interest of individuals, but upon common
estimation, that is, as he explains himself elsewhere,
according to the worth which they are of to all.
Hence it is that things are valued in proportion to
what is usually offered or given for them, a rule ad
mitting of great variation and latitude, except in certain
cases, where the law has fixed a standard price. In the
common price of articles, the labour and expence of the
merchant in procuring them is taken into the account,
and the sudden changes so frequent in all markets depend
upon the number of buyers, whether it be great or
small, and upon the money and marketable commodities,
whether they be plentiful or scarce.
There may indeed be casualties, owing to which a
thing may be lawfully bought or sold above or below
the market price. Thus for instance, a thing by being
damaged may have lost its original or common value, or
that, which otherwise would not have been disposed of,
may be bought or sold from some particular liking or
aversion. All these circumstances ought to be made
known to the contracting parties. Regard too should be
had to the loss or gain arising from delay or prompt
ness of payment.
XV. In buying and selling we must observe, that the
bargain is completed from the very moment of the con
tract, even without delivery, and that is the most simple
way of dealing. Thus Seneca says, that a sale is a trans
fer of one's right and property in a thing to another,
which is done in all exchanges. But if it be settled that
the property shall not be transferred immediately, still
the seller will be bound to convey it at the stated
period, taking in the mean time all the profits and
losses.
1 52 HUGO GROTIUS
Whereas the completion of bargain and sale, by giving
the purchaser a right of possession and ejectment, and
conveying to him the hazard with all the profits of the
property, even before it is transferred, are regulations of
the civil law not universally observed. Indeed some
legislators have made the seller answerable for all acci
dents and damages, till the actual delivery of possession
is made, as Theophrastus has observed in a passage in
Stobaeus, under the title of laws, where the reader will
find many customs, relating to the formalities of sale, to
earnest, to repentance of a bargain, very different from
the rules of the Roman law. And among the Rhodians,
Dion Prusaeensis informs us that all sales and contracts
were confirmed by being entered in a public register.
We must observe too that, if a thing has been twice
sold, of the two sales the one is valid, where an imme
diate transfer of the property has been made, either by
delivery of possession, or in any other mode. For by this
means the seller gives up an absolute right, which could
not pass by a promise alone.
XVI. It is not every kind of monopoly that amounts
to a direct violation of the laws of nature. The Sover
eign power may have very just reasons for granting
monopolies, and that too at a settled price: a noble in
stance of which we find in the history of Joseph, who
governed Egypt under the auspices of Pharaoh.* So also
under the Roman government the people of Alexandria,
as we are informed by Strabo, enjoyed the monopoly of
all Indian and Ethiopian goods.
A monopoly also may, in some cases, be established
by individuals, provided they sell at a reasonable rate.
But all combinations to raise the necessary articles of
life to an exorbitant rate, or all violent and fraudulent
attempts to prevent the market from being supplied, or
to buy up certain commodities, in order to enhance the
price, are public injuries and punishable as such.f Or in-
* For the necessity of Monopolies in certain cases, see the note on
the xxi. sect, of the 2nd. chapter of this book.
fThe Dutch in order to secure to themselves the monopoly of the
spice-trade have frequently destroyed all the productions of the spice
islands beyond what was necessary for their own supply, By the just
policy of the laws of England, <( combinations among victuallers or
artificers, to raise the price of provisions, or any commodities, or the
rate of labour, are in many cases severely punished by particular
statutes; and, in general, by statute 2 and 3 Edwd. VI. c. 15, with
the forfeiture of 10 1., or twenty days imprisonment with an allowance
THE RIGHTS OF WAR AND PEACE 153
deed ANY WAY of preventing the importation of goods, or
buying them up in order to sell them at a greater rate
than usual, though the price, UNDER SOME PARTICULAR CIR
CUMSTANCES, may not seem unreasonable, is fully shewn by
Ambrose in his third book of Offices to be a breach of
charity; though it come not directly under the prohibi
tion of laws.
XVII. As to money, it may be observed that its uses
do not result from any value intrinsically belonging to
the precious metals, or to the specific denomination and
shape of coin, but from the general application which
can be made of it, as a standard of payment for all
commodities. For whatever is taken as a common meas
ure of all other things, ought to be liable, in itself, to
but little variation. Now the precious metals are of this
description, possessing nearly the same intrinsic value at
all times and in all places. Though the nominal value
of the same quantity of gold and silver, whether paid by
weight or coin will be greater or less, in proportion to
the abundance or scarcity of the things for which there
is a general demand.
XVIII. Letting and hiring, as Caius has justly said,
come nearest to selling and buying, and are regulated by
the same principles. For the price corresponds to the
rent or hire, and the property of a thing to the liberty
of using it. Wherefore as an owner must bear the loss
of a thing that perishes, so a person hiring a thing or
renting a farm must bear the loss of all ordinary acci
dents, as for instance, those of barrenness or any other
cause, which may diminish his profits.* Nor will the
of only bread and water, for the first offence ; 20 1. or the pillory for
the second ; and 40 1. for the third, or else the pillory, loss of one ear,
and perpetual infamy. In the same manner, by a constitution of the
Emperor Zeno, all monopolies and combinations to keep up the price
of merchandise, provisions, or workmanship, were prohibited, upon
pain of forfeiture of goods and perpetual banishment. » — Blackst. Com.
b. iv. c. 12. p. 159. — Also the 39 Geo. III. c. 81, enacted, that every
person combining with others to advance their wages, or decrease the
quantity of work, or any way to affect or controul those who carried
on any manufacture or trade in the conduct and management thereof,
might be convicted before one justice of the peace, and might be
committed to the common gaol for any time not exceeding three cal
endar months, or be kept to hard labour in the house of correction for
two months. — Christian's notes to Blackstone on the same place.
* (< It is possible that an estate or a house may, during the term of
a lease, be so increased or diminished in its value, as to become
worth much more, or much less, than the rent agreed to be paid for
154 HUGO GROTIUS
owner, on that account, be the less entitled to the stipu
lated price or rent, because he gave the other the right
of enjoyment, which at that time was worth so much,
unless it was then agreed that the value should depend
upon such contingencies.
If an owner, when the first tenant has been prevented
from using a thing, shall have let it to another, all the
profits accruing from it are due to the first tenant, for it
would not be equitable that the owner should be made
richer by what belonged to another.
XIX. The next topic, that comes under consideration,
is the lawfulness of taking interest for the use of a con
sumable thing; the arguments brought against which
appear by no means such as to command our assent.
For as to what is said of the loan of consumable prop
erty being a gratuitous act, and entitled to no return,
the same reasoning may apply to the letting of incon
sumable property for hire, requiring a recompence for
the use of \vhich is never deemed unlawful, though it
gives the contract itself a different denomination.
Nor is there any more weight in the objection to tak
ing interest for the use of money, which in its own na
ture is barren and unproductive. For the same may be
said of houses and other things, which are unproductive
and unprofitable without the industry of man.*
There is something more specious in the argument,
which maintains, that, as one thing is here given in re
turn for another, and the use and profits of a thing can-
it. In some of which cases it may be doubted, to whom, of natural
right, the advantage or disadvantage belongs. The rule of justice
seems to be this: If the alteration might be EXPECTED by the parties,
the hirer must take the consequence; if it could not, the owner. An
orchard, or a vineyard, or a mine, or a fishery, or a decoy, may this
year yield nothing or next to nothing, yet the tenant shall pay his
rent; and if they next year produce tenfold the usual profit, no
more shall be demanded; because the produce is in its nature pre
carious, and this variation might be expect ed.» — Paley's, Mor. Phil,
vol. 1. p. 155, 156.
* The following passage from Judge Blackstone will both elucidate
the meaning and support the reasoning of our author. « Though
money was originally used only for the purposes of exchange, yet the
laws of any state may be well justified in permitting it to be turned
to the purposes of profit, if the convenience of society (the great end
for which money was invented) shall require it. And that the allow
ance of moderate interest tends greatly to the benefit of the public,
especially in a trading country, will appear from that generally ac
knowledged principle, that commerce cannot subsist without mutual
THE RIGHTS OF WAR AND PEACE 155
not be distinguished from the thing itself, when the very
use of it depends upon its consumption, nothing more
ought to be required in return for the use, than what is
barely equivalent to the thing itself.
But it is necessary to remark, that when it is said the
enjoyment of the profits of consumable things, whose
property is transferred, in the use, to the borrower or
trustee, was introduced by an act of the senate, this does
not properly come under the notion of Usufruct, which
certainly in its original signification answers to no such
right. Yet it does not follow that such a right is of no
value, but on the contrary money may be required for
surrendering it to the proprietor. Thus also the right of
not paying money or wine borrowed till after a certain
time is a thing whose value may be ascertained, the delay
being considered as some advantage. Therefore in a
mortgage the profits of the land answer the use of money.
But what Cato, Cicero, Plutarch and others allege against
usury, applies not so much to the nature of the thing,
as to the accidental circumstances and consequences with
which it is commonly attended.*
XX. There are some kinds of interest, which are
thought to wear the appearance of usury, and generally
come under that denomination, but which in reality are
contracts of a different nature. The five shillings com
mission which a banker, for instance, charges upon every
hundred pounds, is not so much an. interest in addition
to five per cent, as a compensation for his trouble, and
and extensive credit. Unless money therefore can be borrowed,
trade cannot be carried on: and if no premium were allowed for
the hire of money, few persons would care to lend it; or at least
the ease of borrowing at short warning (which is the life of com
merce) would be entirely at an end.}) — B. ii. ch. 30. p. 454,455.
*(<The Mosaic law indeed prohibited the lending of money upon
usury. But this was a political and not a moral precept. It only
prohibited the Jews from taking usury of their brethren the Jews,
but in express words permitted them to take it of a stranger: which
proves that the taking of moderate usury, or a reward for the use, is
not an evil in itself, since it was allowed where any but an Israelite
was concerned. » — Blackst. Com. b. ii. ch. 30. p. 454. The objec
tions made to it by Cicero and others, our author observes, are
founded more upon the consequences of usury than upon usury
itself. Because it deters men from borrowing. But, on the other
hand, if there were no advantage attached to the lending of
money, none would be found willing to lend; consequently the
benefits arising from a facility of borrowing money to carry on
trade would be defeated.
156 HUGO GROTIUS
for the risk and inconvenience he incurs, by the loan of
his money, which he might have employed in some other
lucrative way. In the same manner a person who lends
money to many individuals, and, for that purpose, keeps
certain sums of cash in his hands, ought to have some
indemnity for the continual loss of interest upon those
sums, which may be considered as so much dead stock.
Nor can any recompence of this kind be branded with
the name of usury. Demosthenes, in his speech against
Pantaenetus, condemns it as an odious act of injustice, to
charge with usury a man, who in order to keep his prin
cipal undiminished, or to assist another with money,
lends out the savings of his industry and frugal habits,
upon a moderate interest.
XXL Those human laws, which allow a compensation
to be made for the use of money or any other thing, are
neither repugnant to natural nor revealed law. Thus in
Holland, where the rate of interest upon common loans
was eight per cent, there was no injustice in requiring
twelve per cent of merchants; because the hazard was
greater. The justice and reasonableness indeed of all
these regulations must be measured by the hazard or
inconvenience of lending. For where the recompence ex
ceeds this, it becomes an act of extortion or oppression.
XXII. Contracts for guarding against danger, which
are called insurances, will be deemed fraudulent and void,
if the insurer knows beforehand that the thing insured
is already safe, or has reached its place of destination,
and the other party that it is already destroyed or lost.
And that not so much on account of the equality natu
rally requisite in all contracts of exchange, as because
the danger and uncertainty is the very essence of such con
tract. Now the premium upon all insurances must be reg
ulated by common estimation.*
* <( Insurances being contracts, the very essence of which consists in
observing the purest good faith and integrity, they are vacated by any
the least shadow of fraud or undue concealment ; and, on the other hand,
being much for the benefit and extension of trade, by distributing the
loss or gain among a number of adventurers, they are greatly encour
aged and protected both by common law and acts of parliament. >J —
Blackst. Com. b. ii. ch. 30. p. 460.
<( The contract of insurance is founded upon the purest principles of
morality and abstract justice. Hence it is necessary that the contract
ing parties should have perfectly equal knowledge or ignorance of every
material circumstance respecting the thing insured. If on either side
there is any misrepresentation or allegatio falsz, or concealment, or
THE RIGHTS OF WAR AND PEACE 157
XXIII. In trading partnerships, where money is con
tributed by both parties ; if the proportions be equal, the
profits and the losses ought to be equal also. But if they
be unequal, the profits and the losses must bear the same
proportion, as Aristotle has shewn at the conclusion of
the eighth book of his Ethics. And the same rule will
hold good where equal or unequal proportions of labor
are contributed. Labor may be given as a balance against
money, or both labor and money may be given, accord
ing to the general maxim that one man's labour is an
equivalent for another man's money.
But there are various ways of forming these agree
ments. If a man borrows money to employ his skill
upon in trading for himself, whether he gains or loses
the whole, he is answerable to the owner for the princi
pal. But where a man unites his labor to the capital of
another in partnership, there he becomes a partner in the
principal, to a share of which he is entitled. In the
first of these cases the principal is not compared as a
balance against the labor, but it is lent upon terms pro
portioned to the risk of losing it, or the probable gains
to be derived from it. In the other case, the price of
labour is weighed, as it were, against the money, and the
party who bestows it, is entitled to an equivalent share
in the capital.
What has been said of labour may be applied to voyages,
and all other hazardous undertakings. For it is contrary
to the very nature of partnerships for any one to share
in the gain, and to be exempt from the losses. Yet it
may be so settled without any degree of injustice. For
there may be a mixed contract arising out of a contract
of insurance in which due equality may be preserved,
by allowing the person, who has taken upon himself the
losses, to receive a greater share of the gain than he
would otherwise have done. But it is a thing quite in
admissible that any one should be responsible for the
losses without partaking of the gains; for a communion
of interests is so natural to society that it cannot subsist
without it.
What has been said by writers on the civil law, that
the shares are understood to be equal where they are
not expressly named, is true where equal quotas have
suppressio veri, which would in any degree affect the premium, or the
terms of the engagement, the contract is fraudulent and absolutely
void,** — Christian's note on the same passage.
i58 HUGO GROTIUS
been contributed. But in a GENERAL partnership the
shares are not to be measured by what may arise from
this or that article, but from the probable profits of the
whole.
XXIV. In naval associations the common motive of
utility is self-defence against pirates: though they may
sometimes be formed from less worthy motives. In
computing the losses to be sustained by each, it is usual
to estimate the number of men, the number of ships,
and the quantity of merchandise protected. And what
has hitherto been said will be found conformable to nat
ural justice.
XXV. Nor does the voluntary * law of nations appear
to make any alteration here. However, there is one
exception, which is, that where equal terms have been
agreed upon, if no fraud has been used, nor any necessary
information withheld, they shall be considered as equal
in an external f point of view. So that no action can be
maintained in a court for such inequality. Which was the
case in the civil law before Dioclesian's constitution. So
among those, who are bound by the law of nations alone,
there can be no redress or constraint on such account. J
* There is a distinction to be observed between the NECESSARY, and
the VOLUNTARY lawof nations. Vattel defines the NECESSARY law to be
(( that which is always obligatory on the conscience, and of which a nation
ought never to lose sight in the line of conduct she is to pursue in order
to fulfil her duty, but when there is a question of examining what she
may demand of other states, she must consult the VOLUNTARY law, whose
maxims are devoted to the safety and advantage of the universal society
of mankind. » — Prelim, sect. 28.
fThe writer quoted in the preceding note defines that obligation
« to be INTERNAL, which binds the conscience, and is deduced from the
rules of duty ; and that to be EXTERNAL, which is considered relatively to
other men, and produces some right between them.* — Ibid. sect. 17.
\ A treaty may be more advantageous to one of the contracting parties
than to the other, and yet contain nothing unjust. (( Frequently a great
monarch, wishing to engage a weaker state in his interest, offers her
advantageous conditions, promises her gratuitous succours, or greater
than he stipulates for himself; but at the same time he claims a supe
riority of dignity, and requires respect from his ally. It is this last par
ticular which renders THE ALLIANCE UNEQUAL: and to this circumstance
we must attentively advert ; for with alliances of this nature we are not
to confound those in which the parties treat on a footing of equality,
though the more powerful of the allies, for particular reasons, gives
more than he receives, promises his assistance gratis, without requir
ing gratuitous assistance in his turn, or promises more considerable
succours or even the assistance of all his forces : here the alliance
is equal, but the treaty is unequal, unless indeed we may be allowed
to say, that, as the party who makes the greater concessions has a
THE RIGHTS OF WAR AND PEACE 159
And this is the meaning of what Pomponius says, that
in a bargain and sale, one man may NATURALLY over
reach another : an allowance which is not to be construed,
as a right, but is only so far a permission, that no legal
remedy can be used against the person, who is deter
mined to insist upon the agreement.
In this place, as in many others, the word natural sig
nifies nothing more than what is received by general
custom. In this sense the Apostle Paul has said, that it
is naturally disgraceful for a man to wear long hair; a
thing, in which there is nothing repugnant to nature,
but which is the general practice among some nations.
Indeed many writers, both sacred and profane, give the
name of NATURAL to what is only CUSTOMARY and HA
BITUAL.
greater interest in concluding the treaty, this consideration restores the
equality. Thus, at a time when France foiind herself embarrassed in a
momentous war with the house of Austria, and the cardinal de Richelieu
wished to humble that formidable power, he, like an able minister, con
cluded a treaty with Gustavus Adolphus, in which all the advantage
appeared to be on the side of Sweden. From a bare consideration of
the stipulations of that treaty, it would have been pronounced an unequal
one ; but the advantages which France derived from it, amply compen
sated for that inequality. » — Vattel, b. ii. ch. 12. sect. 175. p. 200, 201.
CHAPTER XIII.
ON OATHS.
Efficacy of oaths among Pagans — Deliberation requisite in oaths —
The sense, in which oaths are understood to be taken, to be adhered
to — To be taken according to the usual meaning of the words —
The subject of them to be lawful — Not to counteract moral obliga
tions — In what sense oaths are an appeal to God — The purport of
oaths — To be faithfully observed in all cases — The controul of
sovereigns over the oaths of subjects — Observations on our Saviour's
prohibition of oaths — Forms substituted for oaths.
I. THE sanctity of an oath with regard to promises,
agreements, and contracts, has always been held in the
greatest esteem, in every age and among every people.
For as Sophocles has said in his Hippodamia, w The soul
is bound to greater caution by the addition of an oath.
For it guards us against two things, most to be avoided,
the reproach of friends, and the wrath of heaven. }> In
addition to which the authority of Cicero may be quoted,
who says, our forefathers intended that an oath should
be the best security for sincerity of affirmation, and the
observance of good faith. <( For, as he observes in another
place, there can be no stronger tie, to the fulfilment of
our word and promise, than an oath, which is a solemn
appeal to the testimony of God.^
II. The next point, to be considered, is the original
force and extent of oaths.
And in the first place the arguments, that have been
used respecting promises and contracts, apply to oaths
also, which ought never to be taken but with the most
deliberate reflection and judgment. Nor can any one
lawfully take an oath, with a secret intention of not being
bound by it. For the obligation is an inseparable and
necessary consequence of an oath, and every act accom
panied with an obligation is supposed to proceed from a
deliberate purpose of mind. Every one is bound like
wise to adhere to an oath in that sense, in which it is
usually understood to be taken. For an oath being an
appeal to God, should declare the full truth in the sense
in which it is understood. And this is the sense upon
which Cicero insists that all oaths should be performed
(160)
THE RIGHTS OF WAR AND PEACE 161
and adhered to in that sense, in which the party impos
ing them intended they should be taken. For although
in other kinds of promises a condition may easily be im
plied, to release the promiser; yet that is a latitude by
no means admissible in an oath. And on this point an
appeal may be made to that passage, where the admirable
writer of the Epistle to the Hebrews has said, GOD WILL
ING more abundantly to shew unto the heirs of the
promise the immutability of his counsel confirmed it by
an oath: that by two immutable things, in which it was
impossible for God to deceive, we might have a strong
consolation. In order to understand these words, we
must observe that the sacred writers, in speaking of God,
often attribute to him human passions, rather in con
formity to our finite capacities, than to his infinite nature.
For God does not actually change his decrees, though he
may be said to do so, and to repent, whenever he acts
otherwise than the words seemed to indicate, the occa
sion, on which they were delivered, having ceased. Now
this may easily be applied in the case of threats, as con
ferring no right; sometimes too in promises, where a
condition is implied. The Apostle therefore names two
things denoting immutability, a promise which confers a
right, and an oath, which admits of no mental reserva
tions.
From the above arguments it is easy to comprehend
what is to be thought of an oath fraudulently obtained.
For if it is certain that a person took the oath upon a
supposition, which afterwards was proved to have no
foundation, and but for the belief of which he would
never have taken it, he will not be bound by it. But if
it appears that he would have taken it without that sup
position; he must abide by his oath, because oaths allow
of no evasion.
III. The meaning of an oath should not be stretched
beyond the usual acceptation of words. Therefore there
was no breach of their oath in those, who, having sworn
that they would not give their daughters in marriage to
the Benjamites, permitted those that had been carried off
to live with them. For there is a difference between
giving a thing, and not recovering that which is lost.
IV. To give validity to an oath, the obligation, which
it imposes ought to be lawful. Therefore a sworn
promise, to commit an illegal act, to do any thing in
violation of natural or revealed law, will be of no effect.
ii
162 HUGO GROTiUS
V. Indeed if a thing promised upon oath be not
actually illegal, but only an obstruction to some greater
moral duty, in that case also the oath will not be valid.
Because it is a duty which we owe to God not to de
prive ourselves of the freedom of doing all the good in
our power.
VI. Oaths may differ in form, and yet agree in sub
stance. For they all ought to include an appeal to God,
calling upon him to witness the truth, or to punish the
falsehood of their assertions, both of which amount to the
same thing. For an appeal to the testimony of a superior,
who has a right to punish, is the same as requiring him
to avenge an act of perfidy. Now the omniscience of
God gives him power to punish, as well as to witness
every degree of falsehood.
VII. It was a custom with the ancients to swear by
persons or beings expressly distinct from the supreme
creator, either imprecating the wrath of those by whom
they swore, whether it were the sun, the heavens, or the
earth ; or swearing by their own heads, by their children,
their country or their prince, and calling for destruction
upon THEM, if there were any falsehood in their oaths.
Nor was this practice confined to Heathen nations
only, but, as we are informed by Philo, it prevailed
among the Jews. For he says that we ought not, in
taking an oath upon every occasion, to have recourse to
the maker and father of the universe, but to swear by
our parents, by the heavens, the earth, the universe.
Thus Joseph is said to have sworn by the life of Pharaoh,
according to the received custom of the Egyptians. Nor
does our Saviour, in the fifth chapter of St. Matthew's
Gospel, intend, as it is supposed by some, to consider
these oaths to be less binding than those taken expressly
by the name of God. But as the Jews were too much
inclined to make use of, and yet disregard them, he
shews them that they are real oaths. For, as Ulpian
has well observed, he who swears by his own life, seems
to swear by God, bearing a respect and reference to his
divine power. In the same manner Christ shews that
he, who swears by the temple, swears by God who pre
sides in the temple, and that he who swears by Heaven,
swears by God, who sits upon the Heavens. But the
Jewish teachers of that day thought that men were not
bound by oaths made in the name of created beings,
unless some penalty were annexed, as if the thing, by
THE RIGHTS OF WAR AND PEACE 163
which they swore, were consecrated to God. For this is
the kind of oath implied in the word ««/?/5av, as BY A
GIFT. And it is this error of theirs, which Christ
refutes.
VIII. The principal effect of oaths is to cut short
disputes. <( An oath for confirmation, as the inspired
writer of the Epistle to the Hebrcivs lias said, is the end of
all strife. }> So too we find in Diodorus Siculus, that an
oath was regarded among the Egyptians as the surest
pledge of sincerity that men could give. So that every
one, in taking an oath, should express the real purpose
of his mind, and render his actions conformable to those
expressions. There is a beautiful passage on this subject,
in Dionysius of Halicarnassus, who says, (( the last pledge
among men, whether Greeks or Barbarians, and it is a
pledge, which no time can blot out, is that which takes
the Gods, as witnesses to oaths and covenants. }>
IX. The substance of an oath too should be such, and
conceived in such words, as to include not only the divine,
but the human obligations, which it implies. For it should
convey to the person, who receives it, the same security
for his right, as he would derive from an express prom
ise or a contract. But if either the words bear no refer
ence to a person so as to confer upon him a right, or if
they do refer to him but in such a manner that some
opposition may be made to his claim, the force of the
oath will, in that case, be such as to give that person no
right from it; yet he who has taken it must still submit
to the divine obligation, which the oath imposes. An
example of which we have in a person, from whom a
sworn promise has been extorted by fear. For here the
oath conveys no right, but what the receiver ought to
relinquish, for it has been obtained to the prejudice of
the giver. Thus we find the Hebrew Kings were re
proved by the prophets, and punished by God for not
observing the oaths, which they had taken to the kings
of Babylon.
X. The same rule applies not only to transactions
between public enemies, but to those between any indi
viduals whatsoever. For he, to whom the oath is taken,
is not the only person to be considered; but a solemn
regard must be paid to God, in whose name the oath is
taken, and who possesses authority to enforce the obliga
tion. For which reason it is impossible to admit the
position of Cicero, that it is no breach of an oath to
i64 HUGO GROTIUS
refuse paying to robbers the sum stipulated for having
spared one's life; because such men are not to be ranked
in the number of lawful enemies, but treated as the
common enemies of all mankind, so that towards them
no faith ought to be kept, nor even the sanctity of an
oath observed.
XI. The power of superiors over inferiors, that is of
sovereigns over subjects, with respect to oaths, is the
next topic that comes under consideration. Now the act
of a superior cannot annul the perfect obligation of an
oath, which rests upon natural and revealed law. But as
we are not, in a state of civil society, entirely masters
of our own actions, which in some measure depend upon
the direction of the sovereign power, which has a two
fold influence with respect to oaths, in the one case ap
plying to the person who takes, and in the other, to the
person who receives them. This authority may be exer
cised over the person taking the oath, either by declaring,
before it is taken, that it shall be made void, or by pro
hibiting its fulfilment, when taken. For the inferior or
stibject, considered as such, could not bind himself to
engagements, beyond those allowed by the sovereign leg
islature. In the same manner, by the Hebrew Law, hus
bands might annul the oaths of wives, and fathers those
of children, who were still dependent.
XII. In this place we may cursorily observe, that what
is said in the precepts of Christ, and by St. James, against
swearing at all, applies not to an oath of affirmation,
many instances of which are to be found in the writings
of St. Paul, but to promissory oaths respecting uncertain
and future events. This is plain from the opposition in
the words of Christ. <( You have heard it hath been said
by them of old time, thou shalt not forswear thyself,
but shalt perform unto the Lord thine oath. But I say
to you, swear not at all.® And the reason given for it
by St. James, is that <( you fall not into hypocrisy, w or
be found deceivers; for so the word HYPOCRISY signifies
in the Greek.
Again it is said by St. Paul, that all the promises of
God in Christ are YEA and AMEN, that is are certain
and undoubted. Hence came the Hebrew phrase, that a
just man's YEA is YEA, and his NO is NO. On the
other hand, persons, whose actions differ from their affir
mations, are said to speak YEA and NO, that is their
affirmation is a denial, and their denial an affirmation.
THE RIGHTS OF WAR AND PEACE 165
In this manner St. Paul vindicates himself from the charge
of lightness of speech, adding that his conversation had
not been YEA, and NO.
XIII. Affirmations are not the only modes of obliga
tion. For in many places signs have been used as pledges
of faith; thus among the Persians giving the right hand
was considered the firmest tie. So that where any form
is substituted for an oath, the violation of it will be an
act of perjury. It has been said of Kings and Princes
in particular, that their faith is the same as an oath. On
which account Cicero, in his speech for Dejotarus, com
mends Caesar no less for the vigour of his arm in battle,
than for the sure fulfilment of the pledge and promise
of his right hand
CHAPTER XV.*
ON TREATIES AND ON ENGAGEMENTS MADE BY DELEGATES,
EXCEEDING THEIR POWER.
Public Conventions — Divided into treaties, engagements, and other
compacts — Difference between treaties and the engagements made
by delegates exceeding their powers — Treaties founded on the law of
nature — Their origin — Treaties founded on still more extensive
principles — Treaties with those, who are strangers to the true reli
gion, prohibited neither by the Jewish nor Christian law — Cautions re
specting such treaties — Christians bound to unite against the enemies
of the Christian religion — Among a number of Allies in war, which
of them have the first pretensions to assistance — Tacit renewal of
treaties — The effect of perfidy in one of the contracting parties con
sidered — How far the unauthorized engagements of delegates are
binding, when the sovereigns refuse to ratify them — The Caudian
Convention considered — Whether the knowledge and silence of the
Sovereign makes those unauthorized conventions binding — The Con
vention of Luctatius considered.
I. ULPIAN has divided conventions into two kinds, pub
lic and private, and he has not explained a public con
vention upon the usual principles, but has confined it to
a treaty of peace, which he alleges as his first example,
and he has made use of the engagements entered into
by the generals of two contending powers, as an instance
of private conventions. By public conventions therefore
he means those, which cannot be made but by the
authority and in the name of the sovereign power, thus
distinguishing them not only from the private contracts
of individuals, but ALSO from the PERSONAL contracts of
sovereigns themselves. And indeed private injuries and
contracts, no less than public treaties frequently prove
the origin of wars. And as private contracts have been
already so amply discussed, the higher order of contracts,
which come under the denomination of treaties, will nec
essarily form the leading part in our farther inquiries.
* The nature of oaths, contracts and promises having been so fully
discussed in the preceding chapters, the translation proceeds from the
thirteenth to the fifteenth chapter of the original, the fourteenth being
in a great measure only a repetition of our author's former arguments
upon the subject. — TRANSLATOR.
(166)
THE RIGHTS OF WAR AND PEACE 167
II. and III. Now public conventions may be divided into
treaties, engagements, and other compacts.
The ninth book of Livy may be consulted on the dis
tinction between treaties and engagements, where the
historian informs us, that treaties are those contracts,
which are made by the express authority of the sovereign
power, and in which the people invoke the divine venge
ance on their heads, if they violate their engagements.
Among the Romans the persons employed in declaring
war and making peace, were in the conclusion of these
solemn treaties, always accompanied by the principal
herald, who took the oath in the name of the whole people.
A sponsio^ or ENGAGEMENT, is what was made by persons,
who had no express commission for that purpose from the
sovereign power, and whose acts consequently required a
further ratification from the sovereign himself.*
The Senate of Rome, we are informed by Sallust,
judged very properly in passing a decree, that no treaty
could be made without their consent and that of the peo
ple. Livy relates that Hieronymus, king of Syracuse,
having entered into a convention with Hannibal, sent
afterwards to Carthage to have it converted by the state
into a league. For which reason Seneca the elder has
said, applying the expression to persons invested with a
special commission for that purpose, that a treaty, nego
tiated by the general, binds the whole of the Roman
people, who are supposed to have made it.
* On this subject the opinions of our author, and those of Vattel will
reflect light upon each other. From the latter of whom, the following
extracts will place the matter in a clear point of view. <( If a public per
son, an ambassador, or a general of an army, exceeding the bounds of
his commission, concludes a treaty or a convention without orders from
the sovereign or without being authorised to do it by virtue of his office,
the treaty is null, as being made without sufficient powers : it cannot
become valid without the express or tacit ratification of the sovereign.
The express ratification is a written deed by which the sovereign ap
proves the treaty, and engages to observe it. The tacit ratification is
implied by certain steps which the sovereign is justly presumed to take
only in pursuance of the treaty, and which he could not be supposed to
take without considering it as concluded and agreed upon. Thus, on a
treaty of peace being signed by public ministers who have even exceeded
the orders of their sovereigns, if one of the sovereigns causes troops to
pass on the footing of friends through the territories of his reconciled
enemy, he tacitly ratifies the treaty of peace. But if, by a reservatory
clause of the treaty, the ratification of the sovereign be required — as
such reservation is usually understood to imply an express ratification,
it is absolutely requisite that the treaty be thus expressly ratified before
it can acquire its full force. By the Latin term sponsio, we express an
i68 HUGO GROTIUS
But in monarchies, the power of making treaties be
longs to the king alone, a maxim which the language of
poetry, no less than the records of history, shews to have
been held in all ages. Euripides, whose sentiments are
always conformable to nature, and popular opinion, in
his Tragedy of the Suppliants, says, (( It rests with Adras-
tus to take the oath, to whom, as sovereign, the sole
right of binding the country by treaties belongs. })
No subordinate magistrates have such a power of bind
ing the people; nor will the acts of a smaller portion
bind the greater, an argument used in favour of the
Romans against the Gauls. For there was a majority of
the people with Camillus, the dictator.
But it remains to be considered how far the acts of
those, who have engaged for the people, without any
public authority, are binding. Perhaps it may be said
that the contracting parties have discharged their responsi
bility when they have done all in their power towards
the fulfilment of their obligation. That might be the
case in promises, but the obligation in public contracts
is of a stricter kind. For the party contracting requires
something in return for the engagements he makes.
Hence the civil law, which rejects all promises made by
one person for the performance of some act by another,
renders him who engages for the ratification of a thing
liable to pay damages and interest.
IV. The most accurate distinction in treaties, is that
which makes the foundation of some rest purely upon the
law of nature, and others upon the obligations, which
men have either derived from the law of nature, or
added to it. Treaties of the former kind are, in general,
agreement relating to affairs of state, made by a public person, who ex
ceeds the bounds of his commission, and acts without the orders or com
mand of the sovereign. The person who treats for the state in this
manner without being commissioned for the purpose, promises of course
to use his endeavours for prevailing on the state or sovereign to ratify
the articles he has agreed to : otherwise his engagements would be
nugatory and illusive. The foundation of this agreement can be no
other, on either side, than the hope of such ratification. » — Vattel, b. ii.
ch. xiv. sect. 208, 209, p. 219. <(The general of an army, he proceeds^
has indeed by virtue of his commission, a power to enter, as circum
stances may require, into a private convention, — a compact relative
to himself, to his troops, or to the occurrences of war : but he has no
power to conclude a treaty of peace. He may bind himself, and the
troops under his command, on all occasions where his functions require
that he should have the power of treating; but he cannot bind the state
beyond the extent of his commission. }) — Ibid. sect. 210. p. 220.
THE RIGHTS OF WAR AND PEACE 169
made, not only between enemies, as a termination of
war; but in ancient times were frequently made, and, in
some degree, thought necessary among men in the for
mation of every contract. This arose from that princi
ple in the law of nature, which established a degree of
kindred among mankind. Therefore it was unlawful for
one man to be injured by another. And this natural
justice universally prevailed before the deluge. But after
that event, in process of time, as evil dispositions and
habits gained ground, it was by degrees obliterated. So
that one people's robbing and plundering another, even
when no war had been commenced or declared, was
deemed lawful. Epiphanius calls this the Scythian fash
ion. Nothing is more frequent in the writings of Homer
than for men to be asked, if they are robbers ? A ques
tion, as Thucydides informs us, by no means intending
to convey reproach, but purely for information. In an
ancient law of Solon's mention is made of companies
formed for robbery: and, we find from Justin, that, till
the times of Tarquin, piracy was attended with a degree
of glory.
In the law of the Romans it was a maxim, that nations,
which had not entered into terms of amity, or into
treaties with them were not to be considered as enemies.
But if any thing belonging to the Romans fell into their
hands, it became theirs; or any citizen of Rome, taken
by them, became a slave ; and the Romans would treat
any person belonging to that nation, in the same manner.
In this case the right of postlimimum* is observed. So
at a remote period, before the times of the Peloponne-
sian war, the Corcyraeans were not considered as enemies
by the Athenians, though there was no treaty of peace
subsisting between them, as appears from the speech of
the Corinthians given by Thucydides. Aristotle com
mends the practice of plundering barbarians, and in
ancient Latium an enemy signified nothing but a
foreigner.
In the class of treaties referred to in this section may
be ranked those made between different states for the
mutual preservation of the rights of hospitality and
commerce, as far as they come under the law of nature.
* <(The right of postlimimum is that, in virtue of which, persons and
things taken by the enemy are restored to their former state, on coming
again into the power of the nation to which they belonged. » Vattel, b.
iii. ch. xiv. sect. 204.
i;o HUGO GROTIUS
Arco makes use of this distinction, in his speech to the
Achaeans, as reported by Livy, where he says he does
not require an offensive and defensive alliance, but only
such a treaty as may secure their rights from infringe
ment by each other, or prevent them from harbouring
the fugitive slaves of the Macedonians. Conventions of
this kind were called by the Greeks, strictly speaking,
PEACE in opposition to TREATIES.
V. Treaties founded upon obligations added to those
of the law of nature are either equal, or unequal.
Equal treaties are those, by which equal advantages are
secured on both sides. The Greeks call them ALLIANCES,
and sometimes alliances upon an equal scale. But
treaties of the latter kind are more properly leagues
than treaties, and where one of the parties is inferior in
dignity, they are called INJUNCTIONS, or INJUNCTIONS
ANNEXED TO COVENANTS. Demosthenes in his speech on
the liberty of the Rhodians says, all nations ought to
guard against forming such leagues, as approaching too
near to servitude.
Treaties of both kinds, whether of peace or alliance
are made from motives of some advantage to the parties.
By equal treaties of peace, the restoration of prisoners,
the restoration or cession of conquered places, and other
matters providing for its due maintenance, are settled,
a subject that will be more fully treated of hereafter, in
stating the effects and consequences of war. Treaties of
alliance upon equal conditions relate either to commerce,
or to contributions for the joint prosecution of a war, or
to other objects of equal importance. Equal treaties of
commerce may vary in their terms. For instance it may
be settled that no duties shall be imposed upon the goods
of the subjects, belonging to each of the contracting
powers: or that the duties upon their respective com
modities shall be lower than the duties upon those of any
other nation. The first of these examples may be found
in an ancient treaty between the Romans and Carthagin
ians, in which there is a clause, making an exception of
what is given to the notary and public crier. Or it may
be settled that no higher duties than those existing at
the time the treaty is made shall be imposed, or that
they shall not be augmented beyond a certain rate.
So in alliances of war the contracting parties are re
quired to furnish equal numbers of troops or ships, a kind
of alliance which, as Thucydides explains it, calls upon
THE RIGHTS OF WAR AND PEACE 171
the united powers to hold the same states for common
enemies or friends: we find, in many parts of Livy,
alliances of this description among states, for the mutual
defence of their territories or for the prosecution of some
particular war, or against some particular enemy, or
against all states excepting their respective allies. Po-
lybius has given a treaty of this kind, made between the
Carthaginians and Macedonians. In the same manner
the Rhodians bound themselves by treaty to assist Atigo-
nus Demetrius against all enemies except Ptolemy.
There are other objects too for which equal treaties are
made. Thus one power may bind another to build no
forts in their neighbourhood which might prove an annoy
ance, to give no encouragement to rebellious subjects, to
allow the troops of an enemy no passage through their
country.
VI. From equal treaties, the nature of unequal treaties
may easily be understood. And where two powers contract,
this inequality may be on the side either of the superior, or
of the inferior power. A superior power may be said to
make an unequal treaty, when it promises assistance without
stipulating for any return, or gives greater advantages
than it engages to receive. And on the part of the in
ferior power this inequality subsists when, as Isocrates
says in his PANEGYRIC, her privileges are unduly de
pressed ; so that engagements of this kind may be called
injunctions or commands rather than treaties. And these
may, or may not, be attended with a diminution of their
sovereign power.
Such a diminution of sovereign power followed the
second treaty between the Carthaginians and Romans,
by which the former were bound to make no war but
with the consent of the Roman people; so that from
that time, Appian says, the Carthaginians were com
pelled by treaty to comply with the humour of the Ro
mans. To this kind may be added a conditional surrender,
except that it leads not to a DIMINUTION, but to an
ENTIRE TRANSFER of the sovereign dignity and power.
VII. The burdens attached to unequal treaties, where
no diminution of sovereignty takes place, may be either
transitory or permanent.
TRANSITORY burdens are those, by which the payment
of certain sums of money is imposed, the demolition of
certain works and fortifications, the cession of certain
countries and the delivery of ships or hostages are
i;2 HUGO GROTIUS
required. But PERMANENT conditions are those, which re
quire the tribute of homage and submission from one
power to another.
Nearly approaching to such treaties are those, by
which one power is debarred from having any friends
or enemies, but at the pleasure of another, or from al
lowing a passage and supplies to the troops of any state,
with whom that power may be at war. Besides these
there may be conditions of an inferior and less important
kind ; such as those, which prohibit the building of forts
in certain places; maintaining armies, or having ships
beyond a certain number; navigating certain seas, or
raising troops in certain countries; attacking allies or
supplying enemies. Some conditions indeed go so far
as to prohibit a state from admitting refugees, and to
demand annulling all former engagements with every
other power. Numerous examples of such treaties are to
be found in historians both ancient and modern.
Unequal treaties may be made not only between the
conquerors and the conquered but also between mighty
and impotent states, between whom no hostilities have
ever existed.
VIII. In considering treaties, it is frequently asked,
whether it be lawful to make them with nations, who are
strangers to the Christian religion; a question, which,
according to the law of nature, admits not of a doubt.
For the rights, which it establishes, are common to all
men without distinction of religion.
The gospel has made no change in this respect, but
rather favours treaties, by which assistance in a just
cause may be afforded even to those, who are strangers
to religion. For to embrace opportunities of doing good
to all men is not only permitted as laudable, but enjoined
as a precept. For in imitation of God, who makes his sun
to rise upon the righteous and the wicked, and refreshes
them both with his gracious rain, we are commanded to
exclude no race of men from their due share of our serv
ices. Yet, in equal cases, it admits of no doubt, that
those within the pale of our own religious communion
have a preferable claim to our support.
IX. In addition to the foregoing arguments we may
observe that as all Christians are considered as members
of one body, which are required to feel for the pains and
sufferings of each other, this precept applies not only to
individuals, but to nations and kings in their public
THE RIGHTS OF WAR AND PEACE 173
capacity. For the rule of duty is not to be measured by
the inclination of individuals, but by the injunctions of
Christ. And in some cases the ravages of an impious
enemy can only be opposed by a firm alliance among
Christian kings, and governments. And it is a duty
from which nothing, but inevitable necessity, and their
immediate attention being engrossed by the prosecution
of other wars, can excuse them.
X. Another question frequently arises, which is, when
two states are engaged in war with each other, to which
of them a power, equally allied to both, ought in prefer
ence to give assistance. Here too we must observe there
can be no obligation to support unjust wars. On which
account that confederate power, which has justice on its
side, will have a claim to preference, if engaged in war
with another not comprehended in the number of con
federates, or even if engaged with one of the confeder
ates themselves.
But if two powers engage in a war, equally unjust on
both sides, a third power, united in confederacy with
both, will prudently abstain from interference. Again,
if two powers allied to us are engaged in a just war
against others, with whom we have no connection ; in the
supplies of men or money that we furnish to either we
ought to follow the rule, observed in the case of per
sonal creditors.*
But if personal assistance, which cannot be divided, is
required of the contracting party, in that case the pref
erence must be given to the engagements of the longest
standing. However the case of a subsequent treaty,
which makes the engagements of a more binding
and extensive nature, will form an exception to this
rule.
XI. The tacit renewal of a treaty ought not to be pre
sumed upon at; the expiration of the period, limited for
its continuance, unless certain acts be performed, which
can expressly be construed as a renewal of it, and can
be taken in no other sense.
*« Personal creditors are in the Roman law called Chirographarii,
because they commonly have some bond or note of hand for the debt.
And where there are several such creditors, if the debtor's estate is
not sufficient to satisfy them all, each has his share assigned in pro
portion to the largeness of the debt, without any regard to the time,
when it was contracted. But in mortgages it was different, the debt
of longest standing was to be first satisfied » — Barbeyrac.
174 HUGO GROTIUS
XII. If one of the parties violates a treaty, such a vio
lation releases the other from its engagements. For every
clause has the binding force of a condition. And as an
example of this, a passage from Thucydides may be
quoted, where that historian says that <( for one power to
accede to a new confederacy, and to desert an ally who
has neglected to fulfil his engagements, is no breach of
a treaty; but not to assist another power in conformity
to sworn engagements amounts to a violation thereof. w
And this is generally true, except where it has been
agreed to the contrary, that a treaty shall not be null
and relinquished for trifling disgusts and miscarriages.
XIII. Conventions are as various and numerous as trea
ties, and the distinction made between them is owing
more to the difference of power in those by whom they
are made, than to any real difference in their own nat
ure. But there are two particular points of inquiry ma
terially connected with all conventions, the first of which
relates to the extent of the negotiator's obligation, when
the sovereign or the state refuses to ratify a convention,
whether he is bound to make an indemnity to the other
party for the disappointment, to restore things to the
situation they were in before he treated, or to deliver
up his own person. The first opinion seems conformable
to the Roman civil law, the second to equity as it was
urged by the tribunes of the people, L. Livius, and J.
Melius, in the dispute about the peace of Caudium ; * but
the third is that most generally adopted , as was done
respecting the two famous conventions of Caudium and
Numantia. But there is one caution particularly to be
observed, and that is, that the sovereign is no way
bound by such unauthorised conventions, until he has
ratified them. In the convention alluded to, if the Sam-
nites had intended to bind the Roman people, they
should have retained the army at Caudium, and sent
ambassadors to the senate and people at Rome, to discuss
the treaty, and learn upon what terms they chose to
redeem their army.
*When the Roman army had passed under the yoke at Caudium,
upon their return, when the matter was referred to the senate, it
was said that as the convention was made without the consent of the
senate or people, the Roman people were not bound by it, and a pro
posal was made that those who had signed the treaty should again be
given up to the enemy, thus the people would be released from the
engagement. This proposal was agreed to, and a decree to that purpose
passed.
THE RIGHTS OF WAR AND PEACE 175
XIV. Another question is, whether the knowledge and
silence of the sovereign bind him to the observance of a
convention. But here it is necessary to make a distinc
tion between an absolute convention, and one made upon
condition of its being ratified by the sovereign. For as
all conditions ought to be literally fulfilled, such a con
dition, on failure of fulfilment, becomes void.
This principle was very properly observed in the con
vention made between Luctatius and the Carthaginians ; to
which the people refused to accede, as it had been made
without their consent.* A new treaty therefore was made
by public authority.
The next thing to be considered is, whether there may
not be some act of consent besides silence. For without
some visible act, silence is not of itself sufficient to war
rant a probable conjecture of intention. But if certain
acts are done which can be accounted for upon no other
grounds than those of consent, they are supposed to
ratify a treaty. Thus if the convention of Luctatius had
contained many clauses, some of them relinquishing cer
tain rights, and those clauses had been always duly ob
served by the Romans, such observance would be justly
taken for a ratification of the treaty.
* Luctatius had inserted this clause that the agreement should be
good and valid, only in case it was approved by the Roman people. —
Liv. lib. xxi. c. xix. See likewise Polybius, lib. iii. c. xxi.
CHAPTER XVI.
THE INTERPRETATION OF TREATIES.
The external obligation of promises — Words where other conjectures
are wanting to be taken in their popular meaning — Terms of art to
be interpreted according to the acceptation of the learned in each
art, trade, and science — Conjectures requisite to explain ambiguous
or seemingly contradictory terms — Interpretation of treaties from
the subject-matter — From consequences, from circumstances and
connection — Conjectures taken from motives — The more strict or
more extensive interpretation — Treaties favourable, odious, mixed
or indfferent — The good faith of kings and nations in treaties of
equal validity with law — Rules of interpretation formed from the
above named distinctions — Whether the word allies, in a treaty, is
limited to those, who were such at the time of making it, or applies
to all who are, or hereafter may become such — Interpretation of
the prohibition of one party's making war without the consent or
injunction of the other — Of the freedom granted to Carthage — Dis
tinction between personal and real treaties — A treaty made with a
king continues even during his expulsion by an usurper, such a
treaty extends not to an invader — What kind of promises ought to
have the preference — The extent of obvious conjectures — The per
formance of a commission by doing something equivalent — Inter
pretation restricted more closely than the bare signification of the
words implies — From an original defect of intention — From failure
of the sole motive — From a defect in the subject — Observations on
the last named conjectures — Emergencies repugnant to the original
intention, by rendering it unlawful or burdensome — Conjectures
taken from a comparison of one part of the writings with another —
Rules to be observed — In dubious cases, writings not absolutely
requisite to the validity of a contract — Contracts of Sovereigns
not to be interpreted by the Roman law — Whether the words of the
person accepting or offering the engagement ought to be most
regarded — This explained by a distinction.
I. IF WE consider the promiser alone, he is naturally
bound to fulfil his engagements. Good faith, observes
Cicero, requires that a man should consider as well what
he intends, as what he says. But as acts of the mind
are not, of themselves visible, it is necessary to fix upon
some determinate mark, to prevent men from breaking
their engagements, by allowing them to affix their own
interpretation to their words. It is a right, which natural
reason dictates, that every one who receives a prom
ise, should have power to compel the promiser to do
what a fair interpretation of his words suggests. For
(176)
THE RIGHTS OF WAR AND PEACE 177
otherwise it would be impossible for moral obligations
to be brought to any certain conclusion. Perhaps it was
in this sense that Isocrates, treating of agreements, in
his prescription against Callimachus, maintains that the
laws enacted on this subject are the common laws of all
mankind, not only Greeks, but barbarians also. It is
for this very reason, that specific forms have been assigned
for treaties, which are to be drawn up in terms of un
equivocal and certain meaning. The proper rule of
interpretation is to gather the intention of the parties
pledged, from the most probable signs. And these are of
two kinds, namely, words and conjectures, which may
be considered either separately, or together.
II. Where we have no other conjecture to guide us,
words are not to be strictly taken in their original or
grammatical sense, but in their common acceptation, for
it is the arbitrary will of custom, which directs the laws
and rules of speech.* It was a foolish act of per
fidy therefore in the Locrians, when they promised they
would adhere to their engagements as long as they stood
upon that soil, and bore those heads upon their shoul
ders, in order to evade their promise to cast away the
mould, which they had previously put within their shoes,
and the heads of garlick, which they had laid upon their
shoulders. Acts of treachery like these, Cicero, in the
third book of his Offices, has properly observed, instead
of mitigating, tend to aggravate the guilt of perjury.
III. In terms of art which are above the comprehen
sion of the general bulk of mankind, recourse, for expla
nation, must be had to those, who are most experienced
in that art; thus from consulting legal writers, we may
conceive the nature of particular crimes, or from the
pages of the same authors, derive our notions of sover
eign power.
*<(In all human affairs, where absolute certainty is not at hand to
point out the way, we must take probability for our guide. In most
cases it is extremely probable that the parties have expressed them
selves conformably to the established usage: and such probability ever
affords a strong presumption, which cannot be overruled but by a
still stronger presumption to the contrary. Camden, in his history of
Queen Elizabeth, gives us a treaty, in which it is expressly said that
the treaty shall be precisely understood according to the force and ap
propriate signification of the terms.» — Vattel, b. ii. ch. xvii. sect. 271. On
the same subject, Judge Blackstone says, that (< words are generally to
be understood in their usual and most known signification ; not so much
regarding the propriety of grammar, as their general and popular use.» —
Introduct. to Com. ch. ii. p. 59.
1 78 HUGO GROTIUS
It is a just remark of Cicero's, that the language of
logic is not that of daily and familiar intercourse: the
writers of that class have phrases peculiar to themselves :
which indeed is the case with arts of every description.
So in treaties, where military arrangements occur, an
army is denned to be a number of soldiers capable of
OPENLY invading a foreign, or an enemy's country. For
historians everywhere make a distinction between the
private incursions of robbers, and what is done by a law
ful and regular army. What constitutes an army must
be therefore judged of by the enemy's force. Cicero
defines an army to consist of six legions and auxiliaries.
Polybius says, that a Roman army in general amounted
to sixteen thousand Romans, and twenty thousand aux
iliaries. But a military force might be composed of a less
number of troops than this. In the same manner the
number of ships sufficient for any purpose will amount
to a fleet, and a place able to hold out against an enemy
may be called a fort.
IV. It is necessary to make use of conjecture, where
words or sentences admit of many meanings : A mode of
expression when included in one word, is called by
Logicians, a synonymous term, and, w^hen extending to
two or more words, a doubtful phrase. In the same
manner it is necessary to have recourse to conjecture
whenever a seeming contradiction occurs in the expres
sions of a treaty. For in that case we must try to
discover such conjectures, as will reconcile, if possible,
one part with another. For if there be an evident con
tradiction, the contracting parties by their latter deter
minations, must have intended to abrogate their former;
as no one can design to make contradictory resolutions
at the same time. Indeed all acts depending upon the
human will, as in the case of laws and testaments, which
depend upon the will of one party, and in contracts and
treaties, which depend upon that of two or more, all
these acts are liable to changes, with a subsequent change
of will in the parties concerned. In all such cases any
obscurity in the language obliges us to have recourse to
conjectures, which are sometimes so obvious, as to point
out a meaning directly contrary to that of the words in
their usual acceptation. Now the principal sources of
conjecture are to be found in the subject-matter,
the consequences, and the circumstances and connec
tion.
THE RIGHTS OF WAR AND PEACE 179
V. From the subject or matter, as for instance, in the
word day. Thus if a truce be made for thirty days, here
civil and not natural days are meant.*
So the word donation is sometimes used to signify a
transfer, according to the nature of the business. In the
same manner too the word arms, which in general sig
nifies military instruments, is sometimes applied to troops,
and may be taken in either sense, according to the par
ticular occasion. Every interpretation must be given
according to the intention understood. Thus the promise
of a free passage given upon the evacuation of a town,
implies also that the troops shall pass without molesta
tion. If a number of ships are to be given up, perfect
and not mutilated ships are meant. And in all similar
cases a similar judgment must be formed according to
the natural tenor of the words.
VI. Another source of interpretation is derived from
the consequences, especially where a clause taken in its
literal meaning would lead to consequences foreign or
even repugnant to the intention of a treaty. For in
an ambiguous meaning such an acceptation must be taken
as will avoid leading to an absurdity or contradiction.
The cavil of Brasidas therefore is highly abominable,
who, promising that he would evacuate the Boeotian
territory, said he did not consider that as Boeotian terri
tory, which he occupied with his army; as if the ancient
bounds were not intended, but only what remained un-
conquered, an evasion, which entirely annulled the treaty.
VII. From the circumstances or context another source
of interpretation is derived. No inconsiderable light may
be thrown upon the meaning of an expression from the
circumstance of its being used by the same person to
express the same intentions on other similar occasions,
and from its relation to what goes before, and what
follows the place, where it stands. For in all doubtful
cases, we have reason to suppose that the contracting
parties mean to be consistent with their former opinions
and intentions. Thus in Homer, in the agreement be
tween Paris and Menelaus, that Helen should be given
*The word DAY is understood of the NATURAL DAY, or of the time
during which the sun affords us his light, and of the CIVIL DAY, or
the space of twenty-four hours. When it is used in a convention to
point out a space of time, the subject itself manifestly shews that the
parties mean the civil day, or the term of twenty-four hours. »— Vattel,
b. ii. ch. xvii. sect. 280.
i8o HUGO GROTIUS
up to the conqueror, when compared with what follows,
it is evident that by the conqueror is meant the combat
ant, who killed the other. This rule of interpretation,
Plutarch illustrates by the conduct of judges, <( who pass
ing by what is obscure rest their decisions upon clear
and unambiguous points. )}
VIII. As to the motives, which are sometimes taken
for a rule of interpretation, there may be other sub
stantial ones, besides those immediately expressed, for
the passing of a law or the making of a treaty. Yet the
strongest conjecture is that which arises from certain
proof that the will was actuated by some reason, operat
ing as a sole and sufficient motive. For there are
frequently MANY motives, and sometimes the will is
influenced by its own choice independent of any other
reason. In the same manner a grant made, in contemp
lation of a marriage, will be void, if the marriage never
takes place.
IX. It is further to be observed that many words have
a variety of acceptations, some more limited and others
more extensive ; which may be owing either to the appli
cation of a general name to a particular class of things,
as in the words kindred and adoption; or to the use of
masculines to express animals both of the male and female
kind, where nouns of a common gender are wanting. In
terms of art too, words are often taken in a metaphorical
or extended sense: thus in the civil law death signifies
banishment; but in its popular acceptation a dissolution
of the parts of the natural body.
X. In promises likewise, some things are of a favour
able, some an odious, and others of a mixed or indifferent
description. Favourable promises are those which contain
an equality of terms, or which bear some relation to the
common good, the magnitude and extent of which increases
the favour of the promise : so that all engagements more
conducive to peace than to war are to be considered as
those of a favourable cofnplexion, and alliances for mutual
defence are always regarded as a more laudable object
than those for offensive war.
Treaties of an odious kind are those which lay greater
burdens on one party than on the other, which contain
penalties for non-performance, or which lead to an abro
gation or infraction of former treaties. Whereas, though
engagements of a mixed nature may create a deviation
from former treaties, they may be taken either in a
THE RIGHTS OF WAR AND PEACE 181
favourable or odious light, according to the magnitude,
or object of the change produced. If it be for the sake of
peace, it is better, taking all circumstances into consid
eration, to rank them with those of a favourable kind.
XI. The distinction made by the Roman law between
acts of equity and those of strict justice, cannot GENERALLY
be applied to the lav/ of nations, though it may in some
cases be adopted. Thus in any transaction between the
subjects of two countries, in each of which the same
form of legal proceeding is observed, the parties are
supposed to treat without any intention of deviating from
the common rule and form, unless they have expressly
determined to the contrary. But in acts for which no
common rule is prescribed, as in donations and free
promises, there the parties are supposed to treat accord
ing to the strict letter of the agreement.
XII. After the establishment of the former positions,
the subject naturally proceeds to the rules themselves,
which are to be observed in the interpretation of treaties.
And in the first place we may remark, that in things,
which are not of an odious nature, words are to be taken
strictly in their popular meaning, and where they admit
of exceptions, or have more significations than one, it is
lawful to use that which is most extensive. As it has
been already observed, that both Logicians and Gram
marians frequently use particular terms in a general
sense. Thus Cicero in pleading for Caecina, justly main
tains that the interlocutory decree, ordering THAT THE
PERSON EJECTED FROM HIS INHERITANCE SHOULD BE REIN
STATED IN THE POSSESSION, implies not only an ejectment,
but extends to any forcible prevention of the owner's
taking possession.
In things of a favourable nature, if the parties engaged
are acquainted with the legal principles, upon which they
proceed, or rest upon the judgment of those who are so,
the words used may be taken in their most extensive
signification, including even terms of art and of law.*
* (< It is a fundamental rule of construction, that penal statutes shall
be construed strictly, and remedial statutes shall be construed liber
ally. It was one of the laws of the twelve tables of Rome, that
whenever there was a question between liberty and slavery, the pre
sumption should be on the side of liberty. This excellent principle
our law has adopted in the construction of penal statutes: for when
ever any ambiguity arises in a statute introducing a new penalty or
punishment, the decision shall be on the side of lenity and mercy ; or
in favour of natural right and liberty : or, in other words, the decision
i82 HUGO GROTIUS
Again, we must never have recourse to a metaphorical
interpretation, except where the literal meaning would
lead to a direct absurdity, or would defeat the intention
of a treaty.
On the other hand a passage may be interpreted in a
more limited signification, than the words themselves
bear, if such interpretation be necessary, to avoid injus
tice or absurdity. If no such necessity exist, but equity
or utility manifestly require a restriction to the literal
meaning, it must be most rigidly adhered to, except
where circumstances compel us to do otherwise. But in
things of an odious nature a figurative expression may
be allowed in order to avoid inconvenience or injustice.
Therefore, when any one makes a grant, or relinquishes
his right, though he express himself in the MOST GEN
ERAL terms, his words are usually RESTRICTED to that
meaning, which it is probable he intended. And in cases
of this kind, the hope of retaining a thing is sometimes
taken for the act of possession. In the same manner it
is understood that subsidies of men, promised by one
party only, are to be maintained at the expence of the
power, who requires them.
XIII. It is a famous question whether the word ALLIES
includes only those who were such at the time of mak
ing the treaty, or those who might afterwards become so:
as was the case in the treaty made between the Roman
people and the Carthaginians at the conclusion of the
war that had originated in a dispute about Sicily, by
which treaty it was stipulated that both powers should
forbear attacking the allies of each other. Hence the
Romans inferred that although the convention made with
Asdrubal, by which he was prohibited from passing the
Iberus, had been of no service to them, as it had not
been ratified by the Carthaginians, yet if the Cartha-
shall be according to the strict, letter in favour of the subject. And
though the judges in such cases may frequently raise and solve diffi
culties contrary to the intention of the legislature, yet no further
inconvenience can result, than that the law remains as it was
before the statute, and it is more consonant to principles of liberty,
that the judge should acquit whom the legislator intended to punish,
than that he should punish whom the legislator intended to discharge
with impunity. But remedial statutes must be construed according
to the spirit: for in giving relief against fraud, or in the furtherance
and extension of natural right and justice, the judge may safely go
even beyond that which existed in the minds of those who framed
the law." — Christian's Notes on Blackst. Comm. Introd. p. 87.
THE RIGHTS OF WAR AND PEACE 183
ginians sanctioned the conduct of Hannibal in his attack
upon the people of Saguntum with whom the Romans,
after the making of that convention, had entered into an
alliance, they should consider themselves as authorised
to declare war against the Carthaginians for having vio
lated a solemn treaty. Upon which Livy reasons in the
following manner, (< By the clause in favour of allies on
both sides, there was sufficient security for the Sagun-
tines. For there was no limitation of the words to those,
who were allies at that time, nor were they such as to
exclude either power from making new alliances. But if
both sides were at liberty to make new alliances, who
could think it just to deprive the new allies of that pro
tection to which they would be entitled from treaties of
amity ? The exclusion could reasonably go no further
than to declare that the allies of the Carthaginians should
not be seduced to renounce their engagements, nor if
they did so, be admitted into alliance with the Ro
mans. w
The last passage is taken, almost word for word, from
the third book of Polybius. On which we may observe
that the word ALLIES may strictly mean those, who were
so at the time, when the treaty was made, and, without
any forced interpretation, may also be extended to em
brace those, who afterwards became such. To which of
these interpretations the preference is to be given may
be seen from the rules above given: and according to
those rules, it will be found, that alliances formed after
the making of the treaty will not be comprehended in it,
because it relates to the breach of a treaty, the violation
of which is an odious act, and tends to deprive the
Carthaginians of the liberty of redressing themselves by
force against those who were supposed to have injured
them ; a liberty sanctioned by the law of nature, and not
to be abandoned on any slight occasion. Were the
Romans debarred then by this rule from making any
treaty with the Saguntines, and defending them after
they became allies? No! they had a right to defend
them, not by virtue of any treaty, but upon principles
of natural justice, which no treaty can annul. The
Saguntines therefore with respect to both powers were
in the same situation, as if no engagement had been
made in favour of allies. In this case, it was no breach
of treaty for the Carthaginians, upon just grounds, to
commence hostilities against the Saguntines. nor for the
1 84 HUGO GROTIUS
Romans to defend them. Upon the same principle, in the
time of Pyrrhus, it had been stipulated, by treaty, be
tween the Carthaginians and Romans, that if either of
them afterwards entered into any engagement with
Pyrrhus, the party so contracting should reserve to itself
the right of sending succours to the other, if attacked
by that king. Though in that case the war ON BOTH
SIDES could not be just, yet it would involve no infrac
tion of any treaty. This is an example of a case in
equal treaties.
XIV. The case of an unequal treaty may be put,
where it is agreed that one of the confederate parties
shall not make war, without the consent, or by the
injunction of the other, which was stipulated in the
treaty between the Romans and Carthaginians, after
the conclusion of the second Punic war. When the term
WAR is applied to war of every description, particularly
to offensive rather than defensive war; in a dubious
case, it must be limited to its proper signification, lest
the treaty should operate as too great a restraint upon
the liberty of that power, which has engaged in the
unequal treaty.
XV. Of the same kind is the promise given by the
Romans, that Carthage should be free, which could never
mean the enjoyment of complete independence, by a
people, who had long before lost the right of making
war, and many of their other privileges. Yet it left
them some degree of liberty, so much at least, that they
should not be obliged to remove the seat of their govern
ment at the command of any foreign power, and gave them
a pledge that their city should not be disturbed. It was
in vain then for the Romans to urge that it was only
the city which was intended. Whereas those acquainted
with the use of metaphorical language know that by the
city is frequently meant the inhabitants, and govern
ment with its privileges, and not the mere walls and
houses. For the term, BEING LEFT FREE, implies that
the people should enjoy their own laws.
XVI. The nature of personal and real treaties is a fre
quent subject of inquiry, which may properly be examined
in this place. Indeed in all transactions with a free
people, the engagements entered into with them are of a
real nature; because the subject of them is a permanent
thing. So permanent, that, although a republican be
changed into a regal government, a treaty will remain in
THE RIGHTS OF WAR AND PEACE 185
force : for the political body continues the same, although
the head be changed, and the sovereign power, which
before was diffused among many members, is now cen
tered in one. Yet this rule will admit of an exception,
where it is evident that the specific form of government
made an essential part of the treaty, as when two states
make a federal union for the mutual preservation of their
political systems. But if a treaty be made with a KING
OR SOVEREIGN PRINCE, it does not consequently follow that
it is to be considered only as a PERSONAL and not a REAL
treaty. For the name of a person may be inserted in
a treaty, not merely to give it the character of a personal
treaty, but to point out the contracting parties. And this
will be still more evident, if, as is usual in most treaties,
a clause is annexed declaring it to be perpetual, or made
for the good of the kingdom, or with the king himself, and
his successors, and it will also be considered as a real
treaty, even if it is stated to be passed for a definite time.
The treaty between the Romans and Philip, King of the
Macedonians, seems to have been of this description,
which, upon the refusal of his son to continue it, gave
rise to a war.
Other forms too besides those already named, and the
subject itself, will frequently supply no improbable
grounds of conjecture. But if the conjectures are equal on
both sides, it will remain that favourable treaties are sup
posed to be real or permanent, and odious ones only per
sonal. All treaties of peace or commerce are favourable.
Yet all treaties of war are not odious, especially those
of the defensive kind, such a character belonging only to
offensive wars, from the contemplation of the calamities
which they inflict. It is presumed too, that in the forma
tion of treaties, the character of each party is taken into
the account, and that both are persuaded that neither of
them will commence hostilities, but from just and impor
tant causes.
What is usually said of societies terminating with the
death of the parties, has no connection with this subject,
but relates to private societies, the cognizance of which
belongs to the civil law. Whether it was right or wrong
therefore in the people of Fidenae, the Latins, Tuscans
and Sabines, upon the death of Romulus, Tullus, Ancus,
Priscus, Servius, to abandon the respective treaties made
with those kings, it is impossible for us now to decide,
those treaties being no longer extant. On the same point,
1 86 HUGO GROTIUS
Justin maintains a discussion, whether those states, which
had been tributary to the Medes, were upon a change of
government, released from their obligations. For the
thing to be considered is, whether the convention with
the Medes had been a voluntary act of their own. Indeed
the argument of Bodinus can by no means be admitted,
which is, that treaties made with kings extend not to
their successors; For the obligation of an oath is limited
to the person of him, who takes it. It is true that the
oath itself can bind only the person who takes it; yet
the engagements, which it confirms, will be binding upon
his heirs. Nor is it to be taken for an established maxim,
that oaths are the only foundation, on which treaties
rest. The engagement itself is sufficiently binding, the
oaths being only added to give it the greater sanctity.
In the Consulship of Publius Valerius, the Roman people
had taken an oath to muster at the command of the
Consul. Upon his death, he was succeeded by Lucius
Quintius Cincinnatus. Some of the tribunes began to
quibble, pretending that the people were released from
their obligation. Upon which Livy, in his third book,
remarks, that (( at that time they had not degenerated
into the disregard of religious obligations, which marked
his age : nor did every one allow himself a latitude in ex
plaining oaths, and laws, but thought that he was bound
to conform to their literal meaning. w
XVII. A treaty made with a king continues in force,
even though the same king or his successor should be
banished from the kingdom by rebellious subjects. For
the rights of a king, among which his alliances may be
reckoned, remain unimpaired, during the temporary loss
of his throne. A case to which the expression of Lucan
may be applied, that (( order never loses its rights under
any change of circumstances. »
XVIII. On the other hand, any war, if it be with the
consent of the lawful sovereign, made upon the invader
of his kingdom, or upon the usurper of a free people's
rights before his usurpation has received public sanction,
will be deemed no infraction of any former treaty with
the established authorities of that kingdom or country.
For acts of usurpation convey not immediately any right
beyond that of bare possession. And this is what was
said by Titus Quintius to Nabis, (( We made no treaty of
alliance and amity with you, but with the just and law
ful king of the Lacedaemonians. }> For in treaties the
THE RIGHTS OF WAR AND PEACE 187
characters of KING, SUCCESSOR, and the LIKE, carry with
them an idea of a peculiar and lawful right, which must
always render the cause of USURPERS odious.
XIX. It was a question formerly discussed by Chrysip-
pus, whether a prize promised to him, who first reached
the goal, could be given to two, who reached it at the
same time, or to neither. But as rewards of merit are
things of a favourable nature, it is the juster opinion that
they should divide the prize. Although Scipio, Caesar
and Julian acted more liberally, in giving the entire
prizes to each of those who had ascended the walls to
gether.
What has been already said upon the literal or figur
ative application of the words, in interpreting treaties,
will be sufficient.
XX. There is also another kind of interpretation, arising
from conjectures, which apply exactly to the signifi
cation of the words containing a promise or engage
ment; and that is of a twofold description, either
extending or limiting the meaning. But it is more diffi
cult to extend than to limit the acceptation of expressions.
For as in all matters the want of one essential requisite
is sufficient to defeat their effect; so in engagements,
those conjectures, which extend the obligation are not
readily to be admitted. And it is much more difficult
here than in the case above mentioned; where words
allow a more extensive but less familiar acceptation.
For here it is seeking a conjecture to extend the words
of a promise : the conjecture therefore, which is to create
an obligation, ought to be very certain. Nor is it suffi
cient that there is some resemblance in the motives;
for the motive produced to confirm an obligation must
be exactly the same as that of the case under consider
ation. Neither is it always proper to allege a motive for
extending an obligation; because, as it has been already
said, motives, in actuating us to form engagements, may
sometimes be swayed by the will which often acts inde
pendently of any just motive. To authorise therefore
such an extension, it must be evident that the motive,
produced as an example and authority, was the sole and
effectual cause, which influenced the promiser, and that
he considered it in the same extensive view; for other
wise it would have been unjust and prejudicial. The
ancients in their treatises on rhetoric follow the same
rule, when, in speaking of the LETTER and DESIGN, they
188 HUGO GROTIUS
give us one invariable form of expressing the same senti
ment, but in their syllogisms or arts of reasoning they
point out a way of interpreting what is not written, by
what is written. In the same manner too legal writers
lay down rules for avoiding frauds. Now if at a time,
when there was no other mode of fortifying towns, than
by surrounding them with walls, it were stipulated that
a certain place should not be so surrounded, it is evident
that to employ any other means of fortification would be
a breach of that treaty.
As in the above case the interpretation must be ex
tended to guard against every possible evasion, so in the
following example, the prohibition to assemble an armed
force to assail us includes all kinds of violence and force,
by which our lives and security may be endangered.*
XXI. Hence may be solved the question to be found
in Gellius, respecting a commission, whether it can be
fulfilled by doing, not the immediate act required, but
some thing equivalent to it, or in a manner more bene
ficial than in the form prescribed. For this deviation
from the written rule may be proper and lawful, where
the prescribed form is not essential towards attaining the
object, or where, by departing from it, that object can
be better accomplished, according to the answer given
by Scaevola, that the person required to be bail and se
curity for another, may give an order to a third person
to pay that money to the creditor. But where such a
latitude of interpretation is not evidently admissible, we
must adhere to what Gellius has said in the same place,
that it would be a dissolution of all trusts, if the party
acting in commission were, in all cases, left to his own
discretion, rather than bound by his written instructions.
XXII. An interpretation, restricted more closely than
the literal signification of the words containing a promise
absolutely requires, may arise either from some original
defect in the intention of the promiser, or from some sub
sequent emergency repugnant to such intention. Thus if
it were evident that an absurdity would follow the ful
filment of a promise, this would be sufficient to prove an
*The case of a promise made on the supposition of a posthumous
child's dying, instanced by our author in this place, bears so near a re
semblance to that of a father's bequeathing his property to another,
believing his son to be dead, that it is omitted in this chapter having
been already given under the head of erroneous promises in the xi.
chapter and 6th section of this book. — (Translator.)
THE RIGHTS OF WAR AND PEACE 189
original defect in the intention, because no man can be
supposed to have deliberately intended doing an absurd
act. Or if the sole and effectual reason, by which the
promise was influenced, should have ceased, the obliga
tion also would be void, the sole ground on which it
rested being no longer in existence.
XXIII. In the next place, where any sufficient reason
can evidently be assigned for a promise or engagement,
it is not the substance of the promise itself, which is to
be considered, so much as the reason for which that prom
ise was given.
XXIV. Thirdly, the contending parties must always be
supposed to have in contemplation the subject, and
nothing but the subject, however extensive a significa
tion the words may seem to bear. This method of in
terpretation also is handled by the ancient rhetorical
writers, in speaking of expression and design, and they
place it under the head of VARIATIONS IN OPINION.
XXV. In speaking of motives and reasons, it is proper
to observe, that they some times comprehend things,
considered not according to their actual existence, but
according to their moral consequences: in which case it
is by no means right to limit the words of a treaty to
their literal meaning, but the utmost extent of interpreta
tion is allowable, in order to maintain the spirit as well
as the letter of such treaties. Thus if it be stipulated
that no troops or ships shall be brought to a certain
place, or within a certain distance, the prohibition ex
cludes ALL ships or troops from being brought thither,
even under the fairest and most harmless pretences. For
the purport of the treaty is to guard not only against
actual mischief but even against remote danger.
It is a point often disputed, whether the continuance
of things in their present state is a tacit condition, on
which the fulfilment of all promises is founded. A posi
tion that can by no means be maintained, unless it ap
pears that such continuance was the sole motive upon
which the treaties were made. As in many parts of
history, we read of ambassadors having relinquished
their missions, and returned home, upon finding the state
of things so changed that the object of their embassies
was at an end.
XXVI. When an emergency arises repugnant to the
general intention of an act, it is explained by the ancient
masters of rhetoric under the head of expression and
190 HUGO GROTIUS
design. Now this variation between the emergency and
the intention is of a twofold nature. For the will and
its intention are to be collected either from natural rea
son or from some outward sign. In judging of the will
by natural reason, Aristotle, who has treated the subject
with great accuracy, makes the MIND the SEAT OF JUDG
MENT, and the WILL the SEAT OF EQUITY, which he nobly
defines to be the correction of that, wherein the law, by
reason of its universal nature is defective.*
And upon this principle all wills and treaties ought to
be interpreted. For as all cases could neither be fore
seen nor expressed by the lawgiver, it is necessary to
leave a power of excepting the cases, which he himself
would have excepted if he were present. Yet this is not
to be done upon light grounds; for that would be exer
cising a controul over the acts of another; but is only
to be established upon the clearest evidence and strong
est proofs. The clearest proof we can have of a want of
equity, is where following the literal meaning of the
words would be unlawful, that is, repugnant to natural
or divine precepts. For such things, as are incapable of
obligation, are necessarily to be excepted. Quintilian
the elder, says, <( some things although comprehended
within the meaning of no law form a natural exception. }>
Thus any one, who has promised to return a sword, that
has been given up to him, ought not to return it into
the hands of a madman, as danger might result from it
to himself or to other innocent persons. Likewise a thing,
which has been deposited with any one, ought not to be
returned to the hands of the person, who gave the pledge,
if the real owner demands it. I prove this says Tripho-
nius to be justice, which assigns to every one his own
without disturbing the still juster claims of another. For
the reason, it has been already observed, is founded on
*«The variety of human transactions cannot be comprised within
general rules. Occasional decrees therefore become requisite; which
vary with each variation of circumstances, for the measure of what is
indefinite must be indefinite itself, like the leaden ruler in the Lesbian
architecture, which changes its own shape according to that of the stones
to which it is applied. It is manifest, therefore, that equity is a species
of justice, and contrasted with another species to which it is preferable.
A man of equity is he who deliberately and habitually exercises this
virtue; who prefers it in all his dealings to the rigour of justice; and
who, even when the law is on his side, will not avail himself of this
advantage to treat others injuriously or unhandsomely. » — Aristot.
Eth. b. v. ch. x.
THE RIGHTS OF WAR AND PEACE 191
the institution of property, which makes it unjust not to
return a thing when the real owner is known.
XXVII. The need of equity too will appear in cases,
where following the literal meaning of the words will
not be absolutely unlawful, yet, upon a fair estimation,
will be found too hard and intolerable. It might impose
a hardship inconsistent with the general condition of
human nature, or, upon comparing the person and mat
ter under consideration with each other, it might be
found at variance with the general intent of all law,
which is to prevent evil and to redress injury. Thus, if a
person has lent a sum of money, or any other thing, for
a CERTAIN time, he may justly require the repayment or
restoration of it WITHIN that time, if he has great need
of it himself: for acts of kindness are of such a nature,
that no one can be supposed intentionally to bind himself
thereby to manifest inconvenience or prejudice. In the
same manner a sovereign, who has promised assistance
to an ally, will, IN EQUITY, be excused from fulfilling his
engagement, if he wants all his strength at home to ward
off danger or hostilities. The grant also of immunities or
privileges in ORDINARY cases, cannot be pleaded as an
exemption or exception from the services, which the state
in PARTICULAR emergencies requires.
From the above instances it appears that Cicero has
too loosely worded his proposition, (<that such promises,
as are prejudicial to the person, to whom they are given,
are not to be kept, nor, if they are more prejudicial fo
the party giving, than beneficial to the person receiving
them.0 For it should not be left to the promiser to
judge, whether the fulfilment of his engagement will be
serviceable to the party receiving it, except in the case
of the madman cited above: nor is any TRIVIAL or IM
AGINARY prejudice that might result from it, sufficient to
release the obligation. But it ought to be such, as, ac
cording to the nature of the act, would necessarily be
supposed to form an exception. Thus any one, having
promised his assistance to a neighbour at a certain period,
would not be bound to his engagement, if he were de
tained at home by the sickness of a father or a child. A
case, which Cicero, in his first book of offices, has put in
the following terms, <( If any one has undertaken to man
age a cause, and, in the mean time, his son is taken ill,
it will be no breach of duty in him not to perform what
he has promised. }> There is a passage in the fourth book
192 HUGO GROTIUS
of Seneca, ON BENEFITS, to the same effect. (( I am lia
ble, says he, to be charged with levity, and a breach of
faith, if, things continuing as they were, when I made a
promise, I do not perform my engagement. But if any
change has taken place, it leaves me at liberty to recon
sider the matter, and releases the obligation. I promised
my support in court, and it afterwards appeared that the
cause would be prejudicial to my own father. I prom
ised to take a journey, but afterwards heard that the road
was infested with robbers. I promised m)^ presence on
some particular occasion, but was prevented from attend
ing by the sickness of a son. In all these cases, to bind
me to my engagement, the circumstances ought to re
main exactly the same as they were when I made the
promise. w
XXVIII. It has been said that there are other indica
tions of intention, which require an equitable exception
in favour of the present case. And among such proofs
there can be nothing stronger than the same words used
in another place, not where they directly oppose the
present meaning, for that would amount to a contradic
tion, but where they clash with it, owing to some unex
pected emergency, which the Greek Rhetoricians call a
circumstantial disagreement. *
XXIX. When there is any accidental collision between
one part of a written document and another, Cicero, in
the second book of his treatise ON INVENTION, has given
rules for deciding which of them ought to have the pref
erence. Though his arrangement is not very accurate,
yet it is by no means to be neglected. To supply there
fore this defect of accuracy, the rules may be digested
in the following order.
In the first place, a PERMISSION ought to give way to a
COMMAND: because a permission appears to be granted
only in case there is no weightier objection than its being
* Owing to circumstances there may be a variation in the conduct,
and yet no change in the principles of a state. This must frequently
happen in the commercial regulations between different countries, who
are obliged to vary their means to secure the unity of their end. Or
if in a treaty between two nations, it is declared there shall be PER
PETUAL amity, and a subsequent declaration of war by one of the
parties pronounces such amicable relations to be at an end, here there
is no variation in PRINCIPLE but in CIRCUMSTANCES, which render such a
dissolution of the amity, that was originally intended to be perpetual,
necessary to the welfare and preservation of that power, the sole
object of all treaties.
THE RIGHTS OF WAR AND PEACE 193
an exception to a positive precept, nor any preponder
ance in favour of an opposite determination. Conse
quently, as the writer to Herennius says, what is
positively prescribed is more powerful than a bare per
mission.
In the next place what is required to be one at a
FIXED time should have the preference to what may be
done at ANY time. From whence it follows that the
PROHIBITIONS of a treaty are generally of more weight
than its INJUNCTIONS: because the prohibitory power op
erates at ALL times. But it is not so with injunctions,
unless an express time for their fulfilment is named, or
they contain a tacit prohibition.
Among those treaties, which, in the above named re
spects, are equal, the preference is given to such as are
more particular, and approach nearer to the point in
question. For where particulars are stated, the case is
clearer, and requires fewer exceptions than general
rules do.*
Those prohibitions which have a penalty annexed to
them, are of greater weight than those, which have not;
and those with a greater penalty are enforced in prefer
ence to those that have a less. Those engagements also
which are founded upon causes of less magnitude and
importance ought to give way to those which have more
laudable and useful objects in view.
Lastly it is to be observed that a subsequent law or
treaty always repeals a former.
From what has been said an inference may be drawn
in favour of sworn treaties or agreements that they
ought to be taken in the most usual acception of the
words, rejecting all implied limitations and exceptions,
and such as are not immediately necessary to the subject.
Consequently in a case, where a sworn treaty or engage
ment may happen to clash with another not enforced by
the obligation of an oath, the preference ought to be
given to the former.
XXX. It is often asked whether in doubtful points, a
contract should be deemed perfect, before the writings
*To illustrate the nature of GENERAL AND PARTICULAR cases, the
following example is taken from the Puffendorf: — <( One law forbids
us to appear in public with arms on holidays: another law commands
us to turn out under arms and repair to our posts, as soon as we hear
the sound of the alarm bell. The alarm is rung on a holiday. In
such case we must obey the latter of the two laws, which creates an
exception to the former. » — Jur. Gent, lib. v. c. xii. sect. 23.
13
194 HUGO GROTIUS
are made and delivered. We find in Appian's history of
the Mithridatic war, that it was upon this very ground
Murena objected to the convention between Sylla and
Mithridates. However it appears plain, unless it has
been settled to the contrary, that writing ought to be
considered admissible as evidence of a contract, though
not as part of the substance, otherwise it is usually ex
pressed, as in the truce with Nabis, which was to be
ratified from the day the terms were WRITTEN and DE
LIVERED to him.
XXXI. We can by no means admit the rule laid down
by some writers, who maintain, that all engagements of
kings, and states, ought to be explained, as far as it is
possible, upon the principles of the Roman law: unless
indeed it can be made to appear that among some states,
in their intercourse with each other, the CIVIL LAW is
received as the LAW OF NATIONS; a presumption which
ought not to be hastily granted.
XXXII, As to the doubt, which Plutarch advances in
his Symposiacs, whether the words of the party offering,
or those of the one accepting a condition ought to be
most attended to, it appears that where the party accept
ing the terms is the promiser, the nature and substance
of the transaction will depend upon his words, if they
are absolute and unqualified. For if the offer is regard
ed as a positive engagement to do certain acts, then the
full extent of it will be seen by the necessary repetition
of the same words in the promise. But before a con
dition is accepted, it is evident, as was seen in the chap
ter on promises, that the promiser is not bound to its
fulfilment; for no right has been conferred by the one
party, or acquired by the other. Therefore the offer of
a condition of this kind does not amount to a perfect
promise.
CHAPTER XVII.
ON DAMAGES OCCASIONED BY INJURY AND THE OBLIGATION
TO REPAIR THEM.
On Damages occasioned by injury, and the obligation to repair them
— Every misdemeanor obliges the aggressor to repair the loss — By
loss is meant any thing repugnant to right strictly so called — Dis
tinction between fitness and strict right — Loss or diminution of pos
session includes every injury done to the produce as well as the
property itself — Loss estimated from the time that gain ceases —
Injuries done by principals — By accessories — Injuries done by the
neglect of principal or of secondary agents — What persons are im
plicated in those charges, and in what degrees — The parties en
gaged answerable for all consequences — The case where homicide
or any other act of violence ensues — Case of robbery — Or theft —
Promises obtained through fraud or unjust fear — In what cases the
consequences are imputable to the suffering party — How far the
law of nations authorises states to take advantage of an enemy's
fear — How far sovereigns are answerable for any acts of violence
committed by their subjects — The case where subjects in violation
of their sovereign's permission and orders commit acts of piracy
upon allied or neutral states — No one answerable by the law of
nature for the mischief done by his cattle, his slaves, or his ship
— Damages allowed for injuries done to reputation or honour —
What kind of reparation allowed.
I. IT HAS been said above that the rights due to us
arise from three sources, which are contract, injury and
law. It is unnecessary here to dwell upon the nature of
contracts which has been already so fully discussed. The
next point therefore to which we proceed is an inquiry
into the rights resulting to us from injuries received.
Here the name of crime or misdemeanor is applied to
every act of commission or neglect repugnant to the du
ties required of all men, either from their common nature
or particular calling. For such offences naturally create
an obligation to repair the loss or injury that has been
sustained.
II. By loss is meant a diminution of what any one
possesses, whether it be a right derived to him purely
from the law of nature, or from the addition of human
authority, that is from the law of property, contract, or
civil law. God has given life to man, not to destroy,
(195)
196 HUGO GROTIUS
but to preserve it; assigning to him for this purpose a
right to the free enjoyment of personal liberty, reputa
tion, and the controul over his own actions. The man
ner, in which property and contracts convey to any one
a right to things, as well as to the service of another,
has been shewn in the preceding part of this treatise.
In the same manner from the law every man derives
his peculiar right; because the law has the same, if not
greater power over persons and things than individuals
themselves have. Thus by the appointment of law, a
ward has a right to demand the strictest diligence of a
guardian, the state of a magistrate, and not only the
state, but every subject has a right to require it; where
the law expressly declares or evidently implies that
certain acts shall be performed. But the bare circum
stance of an action being fit or proper gives not the
right of POLITICAL justice to demand its performance,
nor does the neglect of it entitle the party suffering to
any legal redress. Because it does not follow that a
thing must belong to a person because it is fit or bene
ficial for him. Thus, as Aristotle says, there is no actual
injustice, though it may be illiberal to refuse assisting
another with money. To the same purpose Cicero, in his
speech for Cneius Plancus, says, that giving their votes
to whom they please, or withholding them if they think
proper, is the true characteristic of a free people. He after
wards, indeed, corrects his assertion by adding, that they
may happen to do what they like, rather than what they
ought to do, taking the word OUGHT to signify propriety.
III. A precaution is necessary here, in order to avoid
confounding things of a different kind.
Now those who are entrusted with the power of ap
pointing magistrates, are bound, from motives of public
good, to chuse the properest persons, and this is what
the state has a RIGHT to require of them. They are
bound therefore to repair any loss which the state may
sustain by the choice of improper persons. So any sub
ject who is not disqualified, though he has no peculiar
right to an office, has an equal right with others to en
deavour to obtain it. In the exercise of which right, if,
he is obstructed by violence or fraud, he may recover
damages, not to the full value of the office which he
sought, but according to the probable loss which he may
reasonably be supposed to have suffered. Similar to
which is the right of a legatee, when a testator has been
THE RIGHTS OF WAR AND PEACE 197
prevented by fraud or violence from making a bequest.
For the capability of receiving a legacy is a kind of
right, which to obstruct a testator from conferring, is
undoubtedly an injury.
IV. The loss or diminution of any one's possessions is
not confined to injuries done to the SUBSTANCE alone of
the property, but includes every thing affecting the pro
duce of it, whether it has been gathered or not. If the
owner himself had reaped it, the necessary expence of
reaping, or of improving the property to raise a produce,
must also be taken into the account of his loss, and form
part of the damages. For it is an established maxim that
no one ought to derive benefit from the loss of another.
V. Damages are to be computed too, not according to
any ACTUAL gain, but according to the REASONABLE expec
tation of it. Which in the case of a growing crop may
be judged of by the general abundance or scarcity of that
particular season.
VI. But besides the person immediately doing an
injury, others may be bound also to repair the losses of
the suffering party. For as a person may be guilty of
offences by negligence as well as by the commission
of certain acts, so they may be done also by accessories,
as well as principals. Now a principal in any crime or
offence is one, that urges to the commission of it, that
gives all possible consent, that aids, abets, or in any
shape is a partner in the perpetration of it.
VII. An accessory is one who gives his counsel, appro
bation, and assent. For where is the difference, says
Cicero, in his second Philippic, between advising an act,
and approving of it ?
VIII. and IX. The obligation to repair the losses suffered
by negligence may be considered in a two-fold light.
Firstly, when any person, whose peculiar office it is,
neglects either to forbid the commission of an injury, or
to assist the injured party. And secondly, when the
person, who ought to do it, either does not dissuade from
the commission of an offence, or passes over in silence,
what he is bound to make known. In these cases, when
it is said that a person OUGHT to do, or to forbear doing
certain actions, it is meant that he is bound by that
right, which strict justice requires, whether that duty
arises from law, or from the capacity, which the person
bears. For though it may be wrong to omit any duty
enjoined by the law of charity, there can be no redress
198 HUGO GROTIUS
for such omission, but every LEGAL REMEDY must be
founded on some PECULIAR RIGHT.
X. It is to be observed also that all the parties above-
mentioned, if they have been the real occasion of loss to
any one, or have abetted the person doing him the injury,
are so far implicated in the guilt, as to be liable to full
damages, or, at least, proportionably to the part they have
taken. For it may and often does happen that a crime
would have been committed by an offender, even with
out the aid of other principals or accessories. In which
case he alone is answerable. Yet neither principals nor
accessories will be allowed to plead as an excuse, that if
they had not aided or abetted, others would have been
found to assist and encourage the perpetrator in the com
mission of the act. Especially, if it appears that without
such assistance from them the crime would never have
been committed. For those other imaginary abettors would
themselves have been answerable, if they had given their
advice or aid.
XI. In the scale of implication the first degree applies
to those, who by their authority, or other means have
compelled or urged any one to the commission of an
offence. On failure of these the perpetrator himself has
the greatest share of guilt, and next to him, others who
have been concerned. In short, all individuals, whose
hands have been engaged in the perpetration, are guilty,
though they have not been the sole authors of the act.
XII. Now he who is answerable for an act, is answer
able for all the injurious consequences attending it. Sen
eca in one of his controversies, treating upon this point,
puts the case of a plane-tree set on fire, by which a house
was burnt, and he subjoins the following remark, <( al
though the mischief went further than was intended, yet
the person doing it was answerable for the WHOLE, as
much, as if he had done it by design. For any one that
puts his defence upon the plea of UNINTENTIONAL INJURY,
ought to have abstained from all mischief whatsoever. w
When Ariarathes, king of Cappadocia had wantonly ob
structed the channel of the river Melas, which discharges
itself into the Euphrates, the swell of waters bursting the
mounds, the Euphrates rose to such a height, as to occa
sion excessive damage to the Cappadocians, the Galatians,
and the Phrygians. Upon which the decision of the mat
ter being left to the Romans, they imposed upon him a
fine of three hundred talents.
THE RIGHTS OF WAR AND PEACE 199
XIII. XIV. XV. and XVI. But to proceed with other
instances of injury, which render the parties committing
them liable to repair the losses occasioned thereby. The
case of excusable homicide may be alleged as one, wherein
the person, who has committed it, is bound to make
every reasonable compensation to the family, dependents,
and connections of the deceased party, in proportion to
the loss, which they have sustained from his death. As
Michael the Ephesian in the fifth book of Aristotle's
Ethics has observed, that the compensation made to the
parents, the wife or children of the deceased is nearly
the same as if it could be made to himself. The writer
is here speaking of excusable homicide, that is, when
the person by whom it is committed, does it not in the
immediate discharge of some legal duty. Wherefore if
any one, in defending himself, has killed another from
whom he might have escaped, though he may have
violated the law of charity, yet he has not incurred the
penalty of a capital offence.
Upon the same principle the person, who has maimed
or mutilated another, will be bound to make him a com
pensation, proportionably to the means of subsistence
which he is deprived of by such a calamity.
A thief or a robber is bound to restore what has been
taken, and to return it with all the improvements it may
have acquired, or to make reparation to the owner, in
proportion to the gain, which the privation has prevented
him from making, or to the actual value of the thing
itself. If the thing has been irretrievably consumed, the
estimation of damages must be made, according to a
medium between the highest and the lowest value.
To this class of offences and due reparation may be
referred all frauds upon the public revenue, all unjust
decisions, or all false evidence, by which states or indi
viduals are injured.
XVII. Contracts, or promises obtained by fraud, vio
lence or undue fear entitle the injured party to full resti
tution. For perfect freedom from fraud or compulsion,
in all our dealings, is a RIGHT which we derive from
natural law and liberty.
With the same class of offenders we may rank all men
in office, who are unwilling to discharge their duty with
out a bribe.
XVIII. When a person has HIMSELF been the occasion of
the fraud or violence, the consequences are imputable to
200 HUGO GROTIUS
his own conduct. For where a voluntary act gives rise
to INVOLUNTARY consequences, those consequences, con
sidered in a moral light, are to be deemed the fruits
growing out of the exercise of a free will.
XIX. But to connect the preceding cases and arguments
with public and national concerns, it is necessary to ob
serve, that it is a maxim introduced and established by
the consent of all nations that the wars which are declared
and conducted by the authority of the sovereign power
on both sides are alone entitled to the denomination of
just wars: And the enemy has no right to demand res
titution for what the prosecution of such wars has reduced
him to abandon through fear. It is upon this principle
we admit the distinction which Cicero has made between
an enemy, towards whom the consent and law of nations
oblige us to observe many common rights, and between
robbers and pirates. For any thing given up to pirates or
robbers, through fear, is no lawful prize: but it may be
recovered, unless a solemn oath of renunciation has been
taken. This is not the case with the captures made in
just war.
The justification which Polybius makes for the Cartha
ginians, in the second Punic war, carries with it an
appearance of equity, though it is not a question imme
diately founded upon the law of nations. They alleged
as a reason for their making that war, that, when they
were engaged in quelling a mutiny of their own merce
naries, the Romans had declared war, seized upon Sar
dinia, and levied contributions of money.
XX. Sovereign Princes and States are answerable for
their neglect, if they use not all the proper means within
their power for suppressing piracy and robbery. And on
this account the Scyrians were formerly condemned by
the Amphictyonic council.
When some of the states of the united Provinces had,
on a particular occasion, granted commissions to many
privateers, and those adventurers plundered friends and
enemies alike, and became general pirates, it was a
subject of great discussion, whether those states were
justified in having made use of the services of desperate
and abandoned men, without exacting sufficient security
for their good conduct. At that time, it was maintained
that they were bound to nothing more, than to punish
or deliver up the offenders, if they could be found, and
to see justice done by a forfeiture of their property.
THE RIGHTS OF WAR AND PEACE 201
For they themselves had neither authorised those UNJUST
acts of plunder, nor shared in the fruits of them. They
had even strictly prohibited the privateers from molest
ing the subjects of friendly powers. As to their taking
securities, there was no obligation to do that: for they
had a right to grant a GENERAL commission to all their
subjects to seize upon the enemy's property: a thing,
which had frequently been done. Nor could that par
ticular commission be considered as an act of injustice
against either allies or neutrals ; since even without such
permission individuals might have fitted and sent out
armed vessels. The states could not foresee, nor conse
quently provide against the misconduct of those adven
turers, who had exceeded their commission ; and if nations
were to decline using the assistance of wicked men, no
army could ever be collected. And it has been confirmed
by the authority both of France and England, that a
sovereign cannot answer for every injury done to the
subjects of a friendly power by his naval or military
forces ; especially if it is plain that they acted in violation
of his orders.
But in what cases any one is released from being answer
able for what is done by his subordinate agents, is a point
not so much for the law of nations, as for the municipal
law, and particularly the maritime code of each country
to decide. In a case similar to that alluded to, a decision
of the supreme court of judicature was made against the
Pomeranians two centuries at least before.
XXL It is the CIVIL law too, which makes an owner
answerable for the mischief or damage done by his slave,
or by his cattle. For in the eye of natural justice he is
not to blame. So neither is the person, whose ship, by
running foul of another, has damaged it, though by the
laws of many nations, and of ours among the rest, the
damages are usually divided between both parties, owing
to the difficulty of deciding, who was in fault.
XXII. Damages are allowed too for any injury done to
our honour or reputation, by assault, slander, or various
other ways. In which, as well as in theft and other crimes
the nature of the offence is to be estimated by its conse
quences. For the reparation in such cases answers to the
penalty imposed for crimes. And that reparation is made
some times by acknowledging the injured party's inno
cence ; and some times by a compensation in money, which
is a standard value of all things.
CHAPTER XVIII.
ON THE RIGHT OF EMBASSIES.
Right of Embassies, an obligation arising out of the law of nations —
Where it obtains — Whether Embassies are always to be admitted —
Dismissal or punishment of ambassadors engaging in plots not to be
considered as a harsh measure, but an act of self-defence — A power
to whom no ambassador has been sent, not bound to respect the
rights of embassy — An enemy to whom an ambassador is sent
bound to respect his rights — The law of retaliation no plea for ill
treatment of an ambassador — This right of protection extends to
an ambassador's suite, if he thinks proper to claim it — To his
moveable property — Examples of obligation without the right of
compulsion — Importance of the sacred character of ambassadors.
I. HITHERTO the pursuit of our inquiries has led us to
examine those rights to which we are entitled by the
law of nature, occasionally touching upon those points
where its authority is farther confirmed by the voluntary
law of nations. And that voluntary law as it is called,
gives rise to certain obligations, which now remain for
our discussion, p.rid in which the rights of embassa-
dors form a leading feature. Almost every page of his
tory offers some remark on the inviolable rights of
ambassadors, and the security of their persons, a security
sanctioned by every clause and precept of human and
revealed law. Nor is it surprising that the persons of
those should be deemed inviolable, who form the princi
pal link in that chain, by which sovereigns and inde
pendent states maintain their intercourse with each other.
To offer violence to them is not only an act of INJUSTICE,
but, as Philip in his letter to the Athenians says, is
acknowledged by all to be an act of IMPIETY.
II. But whatever rights the law of nations may confer
upon ambassadors, it is necessary in the first place to
observe, that none are entitled to them, but those, who
are sent by the sovereigns of independent countries to
each other. For the privileges of provincial, or municipal
deputies sent to the states general of any country are
regulated by the particular laws of that country and not
by the law of nations.*
* <(The deputies sent to the assembly of the states of a kingdom, or
a commonwealth are not public ministers like ambassadors, as they are
(202)
THE RIGHTS OF WAR AND PEACE 203
Thus we find, in the first book of Livy, an ambassador
styling himself a public messenger of the Roman People ;
and, in the sixth book of the same historian, we have a
declaration of the senate, confining the rights of embassies
to the intercourse between foreign powers, and excluding
citizens from the same privileges in their transactions
with each other. Upon this topic, the authority of Cicero
may be cited, who, in order to shew the impropriety of
sending ambassadors to Antony, observes, that they are
not dealing with a Hannibal or a foreign enemy, but with
one of their own citizens.
Now Virgil has so clearly explained WHO are to be
reckoned FOREIGNERS, that we need not have recourse to
lawyers, to understand what is so well expressed by the
poet, who says, (< I look upon every country as foreign,
which owns not the sway of our sceptre. M Aen. vii. 369.
A state therefore connected with another though by an
unequal treaty, if it retain its independence, will have a
right of sending embassies. The Princes of Germany,
who were in some respects subject to the Emperor, as
their head, being Sovereign Princes possessed the right
of sending ambassadors to foreign states. But Kings who
have been entirely subdued in just war, and stripped of
their dominions, have, with all their other sovereign
rights, lost that of sending ambassadors. It was for this
reason, that Paulus Aemilius made prisoners of the mes
sengers sent to him by Perseus, whom he had con
quered.
In civil wars necessity sometimes gives birth to new
rights in violation of former rules. When for instance,
a kingdom is so equally divided between two parties,
that it is a matter of doubt which of them constitutes
the nation, or in a disputed succession between two
claimants of the crown; the kingdom may be considered
as forming two nations at the same time. Tacitus, con
sidering each party in such cases, as entitled to the
rights of the law of nations, condemns the Flavians
for having, in the rage of civil dissensions, violated, in
the persons of the Vitellian ambassadors, those privi
leges, which are respected even among FOREIGN nations.
not sent to foreign powers; but they are public persons, and, in that
respect, are possessed of every exemption and immunity, that are neces
sary to the discharge of their f unctions. » — Vatt. b. iv. ch. vii. sect. 109.
Of this nature are the privileges enjoyed by the representatives of the
British people, and denominated the PRIVILEGES OF PARLIAMENT.
204 HUGO GROTIUS
Pirates and robbers, as they form no civil community,
cannot rest any claim to protection and support upon
the law of nations. Tiberius, as we are informed by
Tacitus, when Tacfarinas sent ambassadors to him,
spurned at the idea of treating with a robber, as with a
lawful enemy. Yet sometimes a pledge of public faith,
and the rights of embassy are allowed to men of that
description, which was done by Pompey to the fugitives
from the Pyrenean forest.
III. There are two points upon which the privileges
granted by the law of nations to ambassadors turn. In
the first place, they have a right to be admitted into
any country, and secondly to be protected from all per
sonal violence. Respecting the former of these points,
there is a passage in the eleventh book of Livy, where
Hanno, a Carthaginian senator inveighs against Hanni
bal for not having admitted into his camp ambassadors,
who came from the allies, and on their behalf; as he had
thereby overturned the law of nations.
But this rule by no means compels nations to give an
UNQUALIFIED admission to all ambassadors. For that
is what the law of nations can never intend: it only
prohibits the refusal of admission without sufficient
grounds.
There are various motives which may afford a suffi
cient plea for such refusal. There may be an objection
to the power who offers to treat, to the person sent upon
the embassy, or perhaps to the object of his mission.
Thus at the suggestion of Pericles, Melesippus, the La
cedaemonian ambassador, was sent out of the territories
of Athens; because he came from an enemy, who had
no pacific intentions. The senate of Rome said, that
they could receive no embassy from Carthage, as long
as the Carthaginian army remained in Italy. The
Achaeans refused to admit the ambassadors of Perseus,
who were secretly MEDITATING war against the Romans.
Upon the same grounds Justinian rejected an embassy
from Totilas, and the same was done by the Goths at
Urbino to messengers from Belisarius. Polybius relates
in the third book of his history, that every power drove
away the ambassadors of the Cynethensians, as they
were so infamous a people.
We have an instance of the second kind, where the
objection is made to the PERSON sent on an embassy, in
the case of Theodore, who was called the atheist, and
THE RIGHTS OF WAR AND PEACE 205
whom Lysimachus refused to receive in the character of
an ambassador sent from Ptolemy, and the same thing
has frequently happened to others, against whom peculiar
motives of aversion have existed.
In the third place, there may be sufficient grounds for
refusing to admit an ambassador, if the object of his
mission be of a suspicious kind, as was the case with
that of Rhabshakeh the Assyrian, whom Hezekiah had
reason to suspect of coming with a design to excite his
people to rebellion. Or the refusal may be justified,
where it is not consistent with the dignity or circum
stances of one power to enter into any treaty, or inter
course with another. For this reason the Romans sent a
declaration to the Aetolians, that they should send no
embassy, but with the permission of their general, and
Perseus was not allowed to send one to Rome, but to
Licinius. Jugurtha's ambassadors too, as Sallust informs
us, were ordered to leave Italy within the space of ten
days, unless they came with offers from that prince to
surrender himself, and his kingdom.
There may often be the best reasons for a sovereign's
refusing to allow of a RESIDENT minister at his court; a
practice, so general in the present day, but totally un
known to the ages of antiquity.
IV. As to the personal exemption of ambassadors from
arrest, constraint, or violence of any kind, it is a subject
of some difficulty to determine, owing to the varieties of
opinion entertained by the most celebrated writers on the
question. In the consideration of this matter, our atten
tion is directed in the first place to the personal priv
ileges and exemptions of ambassadors themselves, and
next to those of their attendants, and their goods. With
respect to their persons, some writers are of opinion,
that it is ONLY from UNJUST VIOLENCE, and ILLEGAL CON
STRAINT, that the law of nations protects ambassadors.
For they imagine that their privileges are to be explained
according to the common principles of the law of nature.
Others again suppose that ambassadors are not amenable
to punishment for ALL offences, but only for such as
amount to a transgression of the law of NATIONS, the
principles of which are of such general extent, as to in
clude the law of nature: consequently there can be no
offences for which an ambassador is not punishable, except
for those actions that are made such by the positive rules
Of MUNICIPAL Or CIVIL LAW.
2c6 HUGO GROTIUS
Others again consider these public representatives of
states and crowned heads, as -only.jiable_to_ punishment
for offences affecting the dignity or governments of the
sovereigns to whom they are sent. While, on the other
hand, there are some writers who maintain that for any
state to punish an ambassador for ANY CRIME WHATEVER
is highly dangerous to the independence of foreign pow
ers ; but that all offenders of that description ought to be
left to the laws of their respective countries, to be pun
ished or not, according to their deserts, upon due com
plaint being made to the sovereigns by whom they were
sent
Some few writers, indeed, in laying down the rule to
be observed in such cases, have decided that an appeal
should be made to other independent and disinterested
powers, which may be considered rather as a matter of
DISCRETION, than of ABSOLUTE RIGHT. But the advocates
of all these various systems have come to no definite con
clusion in support of their favourite opinions. For this
is a right which cannot, like the law of nature, be estab
lished upon unchangeable rules, but derives all its effi
cacy from the will of nations. Nations if they had
thought proper, certainly might have laid down ABSOLUTE
rules of security for ambassadors, or coupled them with
certain exceptions. The argument is supported on one
side by the urgent necessity of heinous crimes being pun
ished, and on the other, the utmost latitude of exemption
is favoured on account of the utility of embassies, the
facility of sending which ought to be encouraged by every
possible privilege, and security. To settle the point there
fore, we must consider how far nations have agreed
among themselves upon these principles; the proofs of
which can only be found in the evidence of history.
Many instances may be produced in favour of both
opinions. And in cases like this, the opinions of those
celebrated for their judgment and knowledge will be of
no small weight, but in some cases we must rest upon con
jectures On this subject the two eminent historians, Livy
and Sallust, may be quoted as authorities, the former of
whom, in mentioning the ambassadors of Tarquin, who
had been guilty of fomenting treasonable conspiracies at
Rome, says, <( that although they deserved to be treated
as enemies tor their guilty conduct, yet the privilege,
which they derived from the law of nations, prevailed
over every other consideration. }) Here we see that the
THE RIGHTS OF WAR AND PEACE 207
rights of ambassadors could not be annulled even by the
most criminal acts of hostility. But the observation made
by Sallust, relates rather to those who come in the train
of an embassy than to ambassadors themselves. The law
of nations surely then will not deny the same privilege
to a principal, which it evidently allows to those who
form but a subordinate part in the public mission. The
historian says, that (( Bomilcar was arraigned and tried
rather upon principles of equity and natural justice, than
in conformity to the law of nations, as he belonged to the
train of Jugurtha; who had come to Rome under the
pledge of public faith. w
Equity and natural justice require punishment to be
inflicted on ALL offenders, whereas the law of nations
makes an exception in favour of ambassadors, and those
who have the public faith for their protection. Where
fore to try or punish ambassadors, is contrary to the law
of nations, which prohibits many things, that are per
mitted by the law of nature.
The law of nations, thus deviating from the law of na
ture, gives rise to those interpretations and conjectures,
which reconcile with the principles of justice a greater
extension of privileges than the law of nature strictly
allows. For if ambassadors were protected against noth
ing more than violence and illegal constraint, their privi
leges would confer no extraordinary advantage. Besides,
the security of ambassadors is a matter of much greater
moment to the public welfare than the punishment of
offences. Because reparation for the misconduct of an
ambassador may be looked for from the sovereign, by
whom he is sent, unless that sovereign chuses to expose
himself to hostilities by approving of his crimes. An ob
jection to such privileges is made by some, who assert,
that it is better for one person to be punished than for
whole nations to be involved in war. But if a sovereign
has SECRETLY given his sanction to the misconduct of his
ambassador, his APPARENT intentions to punish that am
bassador will not deprive the injured power of the right
to seek redress by commencing hostilities.
On the other hand, the right of ambassadors would
rest upon a very slippery foundation if they were ac
countable, for their actions, to any one but ;._. their .own
sovereigns. For as the interests of powers sending, and
of those receiving ambassadors, are in general different,
and some times even opposite, if a public minister were
208 HUGO GROTIUS
obliged to consult the inclinations of both, there would
be no part of his conduct, to which they might not im
pute some degree of blame. Besides although some points
are so clear, as to admit of no doubt, yet universal dan
ger is sufficient to establish the equity and utility of a
general law. For this reason it is natural to suppose,
that nations have agreed, in the case of ambassadors, to
dispense with that obedience, which every one, by gen
eral custom, owes to the laws of that foreign country, in
which, at any time, he resides. The character, which
they sustain, is not that of ordinary individuals, but they
represent the Majesty of the Sovereigns, by whom they
are sent, whose power is limited to no local jurisdiction.
As Cicero, in his eighth Philippic, speaking of a certain
ambassador, says, (C he carried with him the Majesty of
the Senate, and the authority of the State. }> From hence
it is concluded, that an ambassador is not bound by the
laws of the country, where he resides. If he commit an
offence of a trivial nature, it may either be suffered to
pass unnoticed, or he may be ordered to leave the coun
try.
Polybius relates an instance of an ambassador, who was
ordered to leave Rome, for having assisted some hostages
in making their escape. Hence it is obvious why the
Romans inflicted corporeal punishment upon an ambassa
dor of Tarentum, because the Tarentines were at that
time their own subjects, by right of conquest.
If a crime is of a notorious nature, affecting the gov
ernment, an ambassador may be sent home, and his sov
ereign required to punish, or deliver him up, as we read
of the Gauls having done to the Fabians. But, as we
have before occasionally observed, all human laws are
framed upon such principles, as, in cases of extreme
necessity, to admit of equitable relaxations, among which
the privileges of ambassadors may be reckoned. But
these extreme cases of necessity may, according to the law
of nations, as will be seen hereafter, in discussing the
effects of just and solemn war, prevent punishment in
CERTAIN cases, though not in ALL. For it is not the act
of punishment itself, which is objected to, either in re
spect to time, or manner, but the exemption is created to
prevent the greater public evil, which might arise from
the punishment of the offender. To obviate therefore
any imminent danger, if no other proper method can be
devised, ambassadors may be detained and interrogated.
THE RIGHTS OF WAR AND PEACE 209
Thus the Roman Consuls seized the ambassadors of Tar-
quin, previously taking care to secure their papers, to
prevent the evidence, which they might afford, from being
destroyed. But if an ambassador excites and heads any
violent insurrection, he may be killed, not by way of pun
ishment, but upon the natural principle of self-defence,
The Gauls therefore might have put to death the Fabii,
whom Livy calls violators of the law of nature.
V. Mention has before been frequently made of the
exemptions, by which ambassadors are protected from all
personal constraint and violence, and it is understood that
all powers are bound by a tacit agreement, as it were,
from the time of admitting an ambassador, to respect
these exemptions. It MAY and indeed sometimes DOES
happen, that one power gives notice to another that no
ambassador will be received, and if one is sent, that he
will be treated as an enemy. A declaration to this effect
was made by the Romans to the Aetolians, and, on an
other occasion, the Vejentian ambassadors were ordered
to leave Rome, with a menace> if they refused to comply,
of being treated in the same manner as the Roman am
bassadors had been treated by their king Tolumnius, who
had put them to death. The Samnites too forbade the
Romans to go to any council in Samnium, under pain of
forfeiting their lives, or, at least, their personal safety.
The above law does not bind a power, through whose
territories ambassadors pass without leave. For, if they
are going to an enemy of that power, or returning from
him, or are engaged in any hostile design, they may law
fully be treated as enemies; which was done by the Athe
nians in the case of the messengers passing between the
Persians and Spartans, and by the Illyrians in that
of those, who carried on the intercourse between the
Essians and Romans. Xenophon maintains that in
certain cases they may be made prisoners, as Alexander
made those, who were sent from Thebes and Lacedae-
mon to Darius, and the Romans those, whom Philip sent
to Hannibal, and Latius those of the Volscians. For to
treat ambassadors with any degree of rigour, EXCEPT
UPON THOSE SUFFICIENT GROUNDS, would be deemed not
only a breach of the law of nations, but a personal
offence against the sovereigns, to whom they are going,
or by whom they are sent. Justin informs us, that Philip
II. king of Macedon, sent an ambassador to Hannibal
with credentials, empowering him to make an alliance,
210 HUGO GROTIUS
and that, when this ambassador was seized and carried
before the Senate of Rome, they dismissed him without
farther molestation, not out of respect to the king, but
to prevent a doubtful enemy from becoming a decided
one.
VI. But if an embassy, admitted by an ENEMY is en
titled to all the privileges of the law of nations, much
more so is one, admitted by a power UNFRIENDLY, but not
engaged in ACTUAL HOSTILITIES. Diodorus Siculus says,
that a messenger with a flag of truce claims all the secur
ity of peace, even in the midst of war. The Lacedae
monians, who had murdered the heralds of the Persians,
were said by that act to have confounded every distinc
tion between right and wrong, as it is acknowledged by
all nations. For legal writers lay it down as a rule, that
to offer personal violence to ambassadors, whose characters
are deemed sacred, is a defiance of the law of nations,
and Tacitus calls the privileges we are now discussing,
the rights of embassy, sanctified by the law of nations.
Cicero, in his first speech against Verres, asks, if am
bassadors ought not to be safe in the midst of an
enemy's country, or even in his camp ? Innumerable
other instances of this kind might be produced from the
highest authorities both ancient and modern. And it is
with reason that such privileges are revered, for in the
midst of war many circumstances arise, which cannot be
decided but through ambassadors, and it is the only
channel through which proposals of peace can be made,
and confirmed.
VII. It is frequently made a subject of inquiiy, whether
the ambassador of a sovereign, who has exercised any
act of cruelty or rigour, will be subject to the law of
retaliation. History furnishes many instances, in which
punishment has been inflicted in such a manner. But
history is sometimes nothing more than a catalogue of
actions marked with injustice, and ungovernable fury.
Whereas the law of nations, by its privileges, designs to
secure the dignity not only of sovereigns themselves, but
also that of the ambassadors whom they employ. Conse
quently there is a tacit agreement understood to be made
with the latter, that HE shall be exempt, not only from
any ill treatment, that may affect the principal, but from
such likewise, as may affect himself. So that it was a
magnanimous answer, conformable to the law of nations,
which Scipio made, when the Roman ambassadors had been
THE RIGHTS OF WAR AND PEACE 211
ill-treated by the Carthaginians, and the Carthaginian
ambassadors were brought before him, upon his being
asked, in what manner they should be treated, he replied,
not as the Roman ambassadors had been by the Cartha
ginians. Livy adds, that he said, he would do nothing
unbecoming the character and laws of the Roman people.
Valerius Maximus assigns the same language to the Con
suls, on an occasion similar, but prior to this. In ad
dressing Hanno, they said, <( the pledge of faith, which
our state has given, releases you from any such fear. w
For even at that time, Cornelius Asina, in violation of
his public character, had been arrested and thrown into
prison by the Carthaginians,
VIII. The train too of an ambassador, and all the plate
belonging to him are entitled to a peculiar kind of pro
tection. Which gave rise to the passage in the ancient
song of the Heralds, (< O Sovereign, do you make me a
royal messenger from the Roman citizens ? and do you
confer the same privileges on my train and every thing,
which belongs to me ? M And by the Julian law, an injury
affecting not only ambassadors, but even their attend
ants, is pronounced to be a violation of public right.
But these privileges of attendants are only granted so
far as an ambassador himself may think proper: so that
if any of them has committed an offence, he must be
required to deliver up the offender to punishment. He
must be REQUIRED to give him up. Because no violence,
in taking an offender of that description must be used.
When the Achaeans had arrested some Lacedaemonian^
who were along with the Roman ambassadors, the Romans
raised a great outcry against the act, as a violation of
the law of nations. Sallust's opinion in the case of
Bomilcar has already been referred to.
But should the ambassador refuse to give up such
offender, redress must be sought in the same manner, as
would be done with respect to the ambassador himself.
As to his authority over his household, and the asylum,
which he may afford in his house to fugitives, these de
pend upon the agreement made with the power, to whom
he is sent, and do not come within the decision of the
law of nations.
C IX. Neither can the moveable property of an ambassa
dor, nor any thing, which is reckoned a personal ap
pendage, be seized for the discharge of a debt, either
by process of law, or even by royal authority. For, to
212 HUGO GROTIUS
give him full security, not only his person "but every
thing belonging to him must be protected from all com
pulsion. If an ambassador then has contracted a debt,
and, as is usual, has no possession in the country, where
he resides: first of all, courteous application must be
made to himself, and, in case of his refusal, to his sov
ereign. But if both these methods of redress fail, re
course must be had to those means of recovery, which
are used against debtors residing out of the jurisdiction
of the country.
X. Nor is there, as some think, any reason to fear,
that if such extensive privileges were established, no one
would be found willing to enter into any contract with
an ambassador, or to furnish him with necessary articles.
For the same rule will hold good in the case of ambas
sadors, as in that of Kings. As sovereigns, who for
the best of reasons, are placed above the reach of legal
compulsion, find no difficulty in obtaining credit.
XI. The importance of such exemptions may be easily
inferred from the innumerable instances, in which both
sacred and profane history abound, of wars undertaken
on account of the ill-treatment of ambassadors. The war
which David made against the Ammonites, on that ac
count, affords us a memorable instance from holy writ;
and as a profane writer, Cicero may be cited, who
deemed it the most justifiable ground of the Mithridatic
war.
PEACE
By Can Melchers- From a panel painting in Library of
Congress.
CHAPTER XIX.
ON THE RIGHT OF BURIAL.
Right of burying the dead founded on the law of nations — Origin of
this right — Due to enemies — Whether due to those guilty of atro
cious crimes — Whether to those, who have committed suicide —
Otb^r rights also authorised by the law of nations.
I. THE right of burying the dead is one of those
originating in the voluntary law of nations. Next to
the right of ambassadors Dion Chrysostom places that of
burying the dead, and calls it a moral act, sanctioned
by the unwritten law of nature : And Seneca, the elder,
ranks the law, which commands us to commit the bodies
of the dead to their parent earth, among the UNWRITTEN
precepts, but says, they have a stronger sanction than
the RECORDED laws of all ages can give. For, in the
language of the Jewish writers, Philo and Josephus, they
are marked with the seal of nature, and under the name
of nature, we comprehend the customs, that are common
to all mankind, and agreeable to natural reason.
We find it some where said by Aelian, that our com
mon nature calls upon us to cover the dead, and some
writer, in another place, observes that all men are
reduced to an equality by returning to the common dust
of the earth. Tacitus informs us, in b. vi. of his Annals,
that, when Tiberius made a general massacre of all, who
had been connected with Sejanus, and that he forbad
them the rites of burial, every one was struck with horror
to see the last offices of humanity refused; offices, which
Lysias the orator calls the common hopes of our nature.
As the ancients measured the moral character of every
people by their observance or neglect of these rights, in
order to give them a greater appearance of sanctity, they
ascribed their origin to the authority and institutions of
their Gods; so that in every part of their writings we
meet with frequent mention of the rights of ambassadors,
and the rights of burial, as founded upon divine appoint
ment.
In the Tragedy of the Suppliants, Euripides calls it the
law of the Gods, and in the Antigone of Sophocles, the
heroine makes the following reply to Creon, who had for-
(213)
2i4 HUGO GROTIUS
bidden any one under pain of death, to give the rites of
burial to Polynices, <(A prohibition, like this, was not
revealed by the supreme will, nor by that heaven-born
justice, which has established those laws of respect for the
dead: nor did I think that you could command mortals
to transgress the unwritten and inviolable laws of God.
They were not established to-day, nor yesterday, but from
all eternity and will for ever be in force. Their sources
are unknown. Am I through fear of a mortal, and by
obeying his unjust commands, to incur the wrath of
Heaven ? })
The authority of Isocrates, and of Herodotus, and that
of Xenophon, in the sixth book of his Grecian History,
may be appealed to in support of the honours, that have
at all times been paid to the dead. In short, these offices
of humanity are recommended by the conspiring testi
mony of the orators, historians, poets, philosophers and
divines of all ages, who have dignified them with the
names of the most splendid virtues.
II. There seems to be no general agreement of opinion
upon the origin of funeral rites, and the variety of ways,
in which they were performed. The Egyptians EMBALMED,
and most of the Greeks BURNED the bodies of the dead
before they committed them to the grave. Cicero, in the
22d chapter of his second Book on Laws, speaks of the
interment alone, which is now in use, as the most ancient
method, and that, which is most congenial to nature, and
in this he is followed by Pliny.
Some think that men paid it as a VOLUNTARY debt of
nature, which they knew that, AT ANY RATE, they would
be obliged to discharge. For the divine sentence, that
the body should return to the dust, from which it was
taken, was not passed upon Adam only, but, as we find
it acknowledged by the writings of Greece and Rome,
extended to the whole human race, Cicero, from the
Hypsipyle of Euripides, says, c( Earth must be returned
to earth, }) and in the twelfth chapter of Solomon's Eccle-
siastes, there is a passage to the same purport, that (< the
dust shall return to the earth as it was, but the spirit to
God, who gave it." Euripides has enlarged on this sub
ject in the character of Theseus in his Suppliants, (< Suf
fer the dead to be laid in the lap of the earth ; for every
thing returns to its original state, the spirit to heaven,
and the body to the earth : Neither of them is given in
plenary possession, but only for a short use: The earth
THE RIGHTS OF WAR AND PEACE 215
soon demands back the bodies, to which she had given
birth and nourishment. w In the same manner Lucretius
calls the earth (< a prolific parent and a common grave. })
Pliny also describes the earth, as receiving us at our birth,
cherishing our growth, supporting us to the very last, and,
when all the other parts of nature have forsaken us,
taking us to her maternal bosom, and covering us with a
mantle.
There are some, who think that the custom of burial
was bequeathed to us by our first parents as a testament
ary hope of a resurrection. For we are instructed by
Democritus to believe, that our bodies are preserved in
the earth under the promise of a restoration to life.
And Christians in particular have frequently ascribed the
custom of decent burial to the same hope. Prudentius a
Christian poet says, (( What can be the meaning of hal
lowed rocks, or splendid monuments, except that they
are the depositories of bodies, consigned not to death,
but to a temporary sleep ? J>
But the most obvious explanation is to be found in the
dignity of man, who surpassing other creatures, it would
be a shame, if his body were left to be devoured by
beasts of prey. It is an act of compassion then, said
Quintilian, to preserve the bodies of men from ravages
of birds and beasts. For to be tore by wild beasts, as
Cicero observes in his first book ON INVENTION, is to be
robbed of those honours, in death, which are due to our
common nature. And the Roman Poet, makes a lament
ation over one of his heroes, that he had no pious mother
to lay his body in the grave, but he would be left a prey to
birds, or thrown into the river as food for fishes. Aen.
x- 557-56o.
But to speak from still higher authority, God, by the
mouth of his prophets, threatens the wicked that they
shall have burial like that of the brutes, and that the
dogs shall lick their blood. Such a menace denounced
against the wicked, as a punishment, shews that it is an
indignity done to our nature, when, in the words of
Lactantius, the image of God is cast out, to the insults
of beasts of prey. But in such indignity if there was
even nothing repugnant to the feelings of men, still the
nakedness and infirmities of our perishable nature should
not be exposed to the eye of day.
Consequently the rights of burial, the discharge of
which forms one of the offices of humanity, cannot be
216 HUGO GROTIUS
denied even to enemies, whom a state of warfare has
not deprived of the rights and nature of men. For, as
Virgil observes, all animosity against the vanquished
and the dead must cease. Aen. xi. 104. Because they
have suffered the last of evils that can be inflicted. (( We
have been at war, I grant, says Statins, but our hatred
has fallen, and all our enmity is buried in the grave. }>
And Optatus Milevitanus assigns the same reason for
reconciliation. (< If there have been struggles among the
living, your hatred surely must be satisfied with the death
of an adversary. For the tongue of strife is now
silenced. }>
III. Upon the principles advanced above, it is agreed
by all that public enemies are entitled to burial. Ap-
pian calls it the common right of war, with which, Taci
tus says, no enemy will refuse to comply. And the
rules, respecting this, are, according to Dio Chrysostom,
observed, even while the utmost rage of war still con
tinues. (( For the hand of death, as the writer just
quoted observes^ has destroyed all enmity towards the fal
len, and protected their bodies from all insult. » Exam
ples to this purpose may be found in various parts of
history. Alexander ordered those of the enemy, that were
killed at the battle of Issus to be honoured with the rites
of burial, and Hannibal did the same to Caius Flaminius,
Publius Aemilius, Tiberius Gracchus, and Marccllus, the
Roman Generals. So that you would suppose, says Sil-
ius Italicus, he had been paying these honours to a Car
thaginian General. The Romans treated Hanno, and
Pompey Mithridates in the same manner. If it were
necessary to quote more instances, the conduct of De
metrius on many occasions, and that of Antony to king
Archelaus might be named.
When the Greeks were at war with the Persians, in
one part of their military oath they swore to bury all the
dead belonging to the ALLIES, and when they were victori
ous, to bury even the BARBARIANS. After a battle, it was
usual for both sides to obtain leave to bury the dead.
Pausanias, in his account of the Athenian affairs, men
tions the practice of the Athenians who buried the
Medes, regarding it as an act of piety due to all men.
We find from the Jewish writers, that for the same rea
son, their high priests, who were forbidden to come near
a dead body, if they found one, were obliged to bury it.
But Christians deemed BURIAL an act of such importance,
THE RIGHTS OF WAR AND PEACE 217
that they would allow their church-plate to be melted
down, and sold to defray the expences as they would have
done to maintain the poor, or to redeem captives.
There are some few instances to the contrary, but
they are reprobated by the universal feelings of man
kind, and such cruelty deprecated in the most solemn
terms. Claudian calls it a bloody deed to plunder the
dead, and still more so to refuse them the covering of a
little sand.
IV. Respecting those, who have been guilty of atro
cious crimes, there is reason to entertain some doubt,
whether the right of burial is due to them.
The divine law indeed, that was given to the Hebrews,
and which is fraught with every precept of virtue and
humanity, ordered those, who were crucified, which was
the most ignominious kind of punishment that could be
inflicted, to be buried on the same day. Owing to this
law, as Josephus observes, the Jews paid such regard to
burial, that the bodies of those, who were executed pub
licly as criminals, were taken away before sun-set, and
committed to the ground. And other Jewish writers are
of opinion that this was intended as a degree of rever
ence to the divine image, after which man was formed.
To allow burial to criminals must have been the prac
tice in the time of Homer: for we are told, in the third
book of the Odyssey, that ^Egisthus, who had added the
crime of murder to that of adultery, was honoured with
funeral ceremonies by Orestes, the son of the murdered
king. It was the custom with the Romans, as may be
seen from Ulpian, never to refuse giving the bodies of
criminals to their relatives, to bury. The Emperors,
Diocletian, and Maximian, in a rescript, declared, that
they did not refuse to deliver up, for burial, those, who
had deservedly been put to death for their crimes.
In reading the history of civil wars; we find more fre
quent instances of indignities offered to the dead, than
in the accounts of any foreign wars. In some cases, the
bodies of executed criminals are exposed to public view,
and hung in chains, a custom the propriety of which is
very much doubted both by Theological and Political
writers. So far from approving of the practice, we find
such writers bestowing praises upon many, who had
ordered funeral honours to be paid to those, who would
not themselves have allowed the same to others. An
action of this kind was done by Pausanias the Lacedae-
2i8 HUGO GROTIUS
monian, who, being urged by the people of Aegina to
retaliate upon the Persians for their treatment of Leon-
idas, rejected the advice, as unbecoming his own char
acter and the Grecian name. The Pharisees allowed
burial even to King Jannaeus Alexander, who had treated
the dead bodies of their countrymen with every kind of
insult. Though indeed on certain occasions, God may
have punished some offenders with the loss of such a
right, he did so by virtue of his own prerogative, which
places him above the restrictions of all law. And when
David exposed the head of Goliah, it was done to one,
who was an alien, and a despiser of God, and might be
justified by that law, which confined the name and priv
ileges of neighbour to the Hebrews.
V. There is one thing not improper to be observed,
that the rule prevailing among the Hebrews with respect
to burying the dead, contained an exception, as we are
informed by Josephus, excluding those, who had com
mitted suicide. Nor is it surprising that a mark of
ignominy should be affixed to those, on whom death itself
cannot be inflicted as a punishment. Aristotle in the
fifth book of his Ethics, speaks of the infamy universally
attached to suicide. Nor is the observation at all weakened
by the opinions of some of the Grecian poets, that as the
dead are void of all perception, they cannot be affected
either by loss or shame. For it is a sufficient reason
to justify the practice, if the living can be deterred from
committing actions, for which they see a mark of infamy
set upon the dead.
In opposition to the Stoics, and others, who admitted
the dread of servitude, sickness, or any other calamity,
or even the ambitious love of glory to be a just cause
of voluntary death, in opposition to them, the Platonists
justly maintain, that the soul must be retained in the
custody of the body, from which it cannot be released,
but at the command of him, who gave it. On this sub
ject there are many fine thoughts in Plotinus, Olympio-
dorus, and Macrobius on the dream of Scipio.
Brutus, following the opinions of the Platonists, had
formerly condemned the death of Cato, whom he him
self afterwards imitated. He considered it as an act of
impiety for any one to withdraw himself from his alle
giance to the supreme being, and to shrink from evils,
which he ought to bear with fortitude. And Megasthenes,
as may be seen, in Strabo book xv. remarked the disap-
THE RIGHTS OF WAR AND PEACE 219
probation, which the Indian sages expressed of the con
duct of Calanus: for it was by no means agreeable to
their tenets, that any one, through impatience should
quit his post in life. In the fifth book of Quintus Cur-
tius, there is an expression of King Darius to this effect,
that he had rather die by another's guilty hand than by
his own. In the same manner the Hebrews call death a
release, or dismission, as may be seen not only in the
Gospel of St. Luke, ch. ii. v. 19, but in the Greek ver
sion of the Old Testament, Gen. xv. 2, and Numb, xx,
towards the conclusion: and the same way of speaking
was used by the Greeks. Plutarch, in speaking of con
solation, calls death the time, when God shall relieve us
from our post.
VI. There are certain other rights too, which owe their
origin to the voluntary law of nations, such as the right
of possession from length of time, the right of succession
to any one who dies intestate, and the right resulting
from contracts, though of an unequal kind. For though
all these rights, in some measure, spring from the law of
nature, yet they derive their confirmation from human
law, whether it be in opposition to the uncertainty of
conjecture, or to certain other exceptions, suggested by
natural reason: points, all of which have been slightly
touched upon in our discussions on the law of nature.
CHAPTER XX.
ON PUNISHMENTS.
Definition and origin of punishment — In what manner punishment
relates to strict justice — The right of punishing allowed by the
law of nature, to none, except to those, who are innocent of the
crimes and misdemeanours to be punished — Difference of motive
between human and divine punishment — In what sense revenge is
naturally unlawful — -The advantages of punishment, threefold —
1 The law of nature allows any one to inflict punishment upon an
offender, yet with a distinction — The regard which the law of
nations pays to the benefit of the injured party, in the infliction of
punishment — General utility of punishments — What is determined
by the law of the Gospel, in this respect — Answer to the objections
founded upon the mercy of God, as displayed in the Gospel — Cap
ital punishments objected to as cutting off all possibility of repent
ance — Not safe for private Christians to inflict punishments, even
when allowed to do so, by the law of nations — Prosecutions, for
certain offences, to be carried on in the name of the public and
not of individuals — Internal acts not punishable by man — Open
acts, when inevitable through human infirmity not punishable —
Actions, neither directly nor indirectly injurious to society, not
punishable by human laws — The reasons of that exemption — The
opinion, that pardon can never be granted, refuted — Pardon shewn
to be allowable before the establishment of penal law — But not in
all cases — Allowable also subsequently to the establishment of
penalties — Internal and external reasons — Opinion, that there can
be no just reason for dispensing with laws, except where such
dispensation can be implied as authorised by the law, examined
and refuted — Punishment estimated by the desert of the offender
— Different motives compared — Motives which ought to restrain
men from sin — Scale of offences according to the precepts of the
Decalogue — Capacity of the offender — Punishment mitigated from
motives of charity, except where there are stronger motives of an
opposite kind — Facility or familiarity of crimes aggravates their
nature — Clemency, proper exercise of — Views of the Jews and
Romans in inflicting punishment — War considered as a punishment
— Whether hostilities can justly be commenced for intended aggres
sions — Whether Kings and Nations are justified in making war to
punish offences against the law of nature, not immediately affect
ing themselves or their subjects — The opinion, that jurisdiction is
naturally necessary to authorise punishment, refuted — Distinction
between the law of nature, and civil customs, and the divine volun
tary law — The question, whether war can be undertaken to punish
acts of impiety — considered — The being of God, whence known —
Refusal to embrace the Christian religion not a sufficient cause of
war — Cruel treatment of Christians, justifiable cause of war —
Open defiance of religion punishable.
(220)
THE RIGHTS OF WAR AND PEACE 221
I. IN THE preceding part of this treatise, where the
causes, for which war may be undertaken, were explained,
it was considered in a two-fold light, either as a repara
tion for injuries, or as a punishment. The first of these
points having been already cleared up, the latter, which
relates to punishments, remains to be discussed, and it
will require a more ample investigation; for the origin
and nature of punishment, not being perfectly under
stood, has given rise to many errors.
Punishment taken in its most general meaning signifies
the pain of suffering, which is inflicted for evil actions.
For although labour may some times be imposed instead
of punishment; still it is considered in that case, as a
hardship and a grievous burden, and may therefore prop
erly be classed with sufferings. But the inconveniences,
which men are some times exposed to, by being excluded
from the intercourse of society and the offices of life,
owing to infectious disorders, or other similar causes,
which was the case with the Jews on account of many
legal impurities, these temporary privations are not to be
strictly taken for punishments : though from their resem
blance to each other, they are often, by an abuse of
terms, confounded.
But among the dictates laid down by nature, as lawful
and just, and which the ancient Philosophers call the law
of Rhadamanthus, the following maxim may be placed,
THAT IT IS RIGHT FOR EVERY ONE TO SUFFER EVIL PROPOR
TIONED TO THAT WHICH HE HAS DONE.
Which gave occasion to Plutarch, in his book on exile,
to say that (< justice is an attribute of God, avenging all
transgressions of the divine law; and we apply it as the
rule and measure of our dealings with each other. For
though separated by the arbitrary or geographical bounds
of territory, the eye of nature looks upon all, as fellow
subjects of one great empire. w Hierocles gives a fine
character of justice, calling it the healing remedy of all
mischief. Lactantius in speaking of the divine wrath
calls it (< no inconsiderable mistake in those, who degrade
human or divine punishment with the name of cruelty
or rigour, imagining that some degree of blame must
always attach to the punishment of the guilty. }) What
has been said of the inseparable connection of a penalty
with every offense is similar to the remark of Augustin,
<(that to make a punishment JUST, it must be inflicted
for some crime." He applies the expression to explain
222 HUGO GROTIUS
the divine justice, where through human ignorance, the
offence is often undiscoverable though the judgment may
be seen.
II. There are diversities of opinion whether punish
ment comes under the rank of ATTRIBUTIVE or that of
STRICT justice. Some refer it to justice of the attributive
kind, because offences are punished more or less, in pro
portion to their consequences, and because the punish
ment is inflicted by the whole community, as it were,
upon an individual.
It is undoubtedly one of the first principles of justice
to establish an equality between the penalty and the of
fence. For it is the business of reason, says Horace, in
one of his Satires, to apply a rule and measure, by which
the penalty may be framed upon a scale with the of
fence, and in another place, he observes, that it would
be contrary to all reason to punish with the rack a slave,
who deserved nothing more than the whip. I. Sat. iii.
v. 77, and 119. The divine law, as may be seen from the
xxv. Chapter of Deuteronomy, rests upon the same principle.
There is one sense, in which all punishment may be
said to be a matter of strict justice. Thus, when we say
that punishment is due to any one, we mean nothing
more than that it is right he should be punished.
Nor can any one inflict this punishment, but the person,
who has a right to do so. Now in the eye of the law,
every penalty is considered, as a debt arising out of
a crime, and which the offender is bound to pay to the
aggrieved party. And in this there is something ap
proaching to the nature of contracts. For as a seller,
though no EXPRESS stipulation be made, is understood to
have bound himself by all the USUAL, and NECESSARY
conditions of a sale, so, punishment being a natural con
sequence of crime, every heinous offender appears to have
VOLUNTARILY incurred the penalties of law. In this
sense some of the Emperors pronounced sentence upon
malefactors in the following manner, (< you have brought
this punishment upon Yourselves. w Indeed every wicked
action done by design was considered as a voluntary con
tract to submit to punishment. For, as Michael the
Ephesian observes on the fifth book of Aristotle's Nico-
machean Ethics, the ancients gave the name of contract,
not only to the voluntary agreements which men made
with each other, but to the obligations arising from the
sentence of the law.
THE RIGHTS OF WAR AND PEACE 223
III. But to whom the right of punishing properly be
longs, is a matter not determined by the law of NATURE.
For though reason may point out the necessity of pun
ishing the guilty, it does not specify the PERSON, to
whom the execution of it is to be committed.
Natural reason indeed does so far point out the person,
that it is deemed most SUITABLE for a SUPERIOR ONLY to
be invested with the power of inflicting punishment. Yet
this demonstration does not amount to an ABSOLUTE NECES
SITY, unless the word superior be taken in a sense imply
ing, that the commission of a crime makes the offender
inferior to every one of his own species, by his having
degraded himself from the rank of men to that of the
brutes, which are in subjection to man; a doctrine, which
some Theologists have maintained. Philosophers too
agreed in this. For Democritus supposed that power
naturally belonged to superior merit, and Aristotle was
of opinion that both in the productions of nature and
art the inferior were provided for the use of the superior
parts.
From this opinion there arises a necessary conse
quence, that in a case where there are equal degrees of
guilt in two parties, the right of punishment belongs to
neither.
In conformity to which, our Saviour, in the case of the
woman taken in adultery, pronounced that whoever of
the accusers was without sin, meaning sins of equal
enormity, should cast the first stone. John viii. 7. He
said so for this reason, because in that age the manners
of the Jews were so corrupt, that, under a great parade
of sanctity, the most enormous vices, and the most wicked
dispositions were concealed. A character of the times
which the Apostle has painted in the most glowing
colours, and which he closes with a reproof similar to
what his divine master had given, <( therefore thou art
inexcusable, O man, whosoever thou art that judgest: for
wherein thou judgest another thou condemnest thyself;
for thou that judgest doest the same things. * Rom. ii. i.
Applicable to which there is a remark of Seneca's, that
<(no sentence, which is passed by a guilty person can
have any weight. w And in another place, the same
writer observes, that <(if we look into ourselves and con
sider whether we have been guilty of the offences we
are going to condemn, we shall be more moderate in
our judgments. w
224 HUGO GROTIUS
IV. Another part of our inquiry respects the end pro
posed by punishment. For by what has hitherto been
said, it was only meant to shew that in punishing the
guilty no injury is done to them. Still the absolute
necessity of punishment does not follow from thence.
For the pardon of the guilty on many occasions has
been considered as the most beauteous feature in the
divine and human character. Plato is celebrated for his
saying that <( justice does not inflict punishment for the
evils that are done and cannot be retrieved; but to pre
vent the same from being done for the time to come."
From Thucydides we find that Diodorus in addressing the
Athenians on the conduct of the Mitylenaeans, advises
them ((to forbear punishing their avowed injustice, un
less it was probable that the punishment would be
attended with some good effect. }>
These maxims may be true with regard to human
punishments: for one man being so nearly allied to
another by blood, no degree of suffering should be
inflicted, but for some consequent good. But the case is
different with respect to God, to whom Plato injudi
ciously applies the above sentiments. For though the
divine counsels will undoubtedly have the good of men
in view, as the end of all punishment, yet the bare re
formation of the offender cannot be the sole object.
Since the divine justice, though tempered with mercy
must adhere to the truth of the revealed word, which
threatens the wicked with punishment or destruction.
The honour therefore of God, as well as the example
held up to men, will be a consequence resulting from
his punishment of the wicked.
V. A dramatic writer has said that (<the pain of an
enemy is a healing remedy to a wounded spirit," in
which he agrees with Cicero and Plutarch : in the opinion
of the former <( pain is mitigated by the punishment of
an adversary, " and in that of the latter (( satisfaction is
a sweet medicine to a troubled mind. w
But a disposition like this, when stripped of all disguise
and false colouring, will be found by no means suitable
to the reasonable soul of man, whose office it is to
regulate and controul the affections. Nor will that dis
position receive any sanction from the law of nature,
who in all her dictates, inclines to unite men in society
by good will, rather than to separate them by cherish
ing animosity. For it is laid down by reason, as a
THE RIGHTS OF WAR AND PEACE 225
leading axiom in her code of laws, that no man shall do
any thing which may hurt another, unless it be for the
purpose of some evident and essential good. But the
pain of an enemy considered solely of such, is no bene
fit to us, but a false and imaginary one, like that
derived from superfluous riches or things of the same
kind.*
In this acceptation revenge is condemned both by
Christian teachers and heathen philosophers. In this re
spect, the language of Seneca approaches very near to
the perfection of Christian morals. He calls revenge, in
its usual and proper acceptation, a term of inhumanity,
differing from injury only in degree. For retaliation of
pain can be considered as nothing better than excusable
sin. Juvenal, after describing the different tempers, over
which revenge exercises the most powerful dominion,
and shewing the amiable characters over which it has
no influence, concludes it to be the pleasure of a little
and infirm mind.
From the preceding arguments it is plain that punish
ment cannot justly be inflicted from a spirit of revenge.
We proceed therefore to consider the advantages attend
ing its just infliction.
VI. This seems the most proper place for reviewing
those distinctions in the motives of punishment, which
have been used by Plato in his Gorgias, and by Taurus
the philosopher in a passage quoted by Gellius in the
fourteenth chapter of his fifth book. These distinctions
seem to result naturally from the end of all punishment.
Plato indeed considers the amendment of the offender,
and the example given to others, as the two principal
motives: but Taurus has added a third, which he calls
satisfaction, and which is defined by Clemens Alexandri-
nus, to be repayment of evil, contributing to the benefit
* Nothing forms a more striking contrast between ancient and
modern war, then the personal animosities, which seemed to operate
upon the combatants in the former, and the public and national objects,
WITHOUT ANY PERSONAL CONCERN, upon which the latter are undertaken.
Peruse any ancient historian, or the battles in Homer and Virgil, WHICH
THOUGH FICTIONS, DESCRIBE THE MANNERS OF THE AGE, and yOU S6C
combatants engaged, on whom the laws of nature and of nations seem to
have lost their force. Read the accounts of modern warfare and you
find hostilities commenced, not from private animosity, but from some
great and national object, in the prosecution of which the feelings of
the individuals appointed to conduct them are not the only springs of
action.
15
226 HUGO GROTIUS
of both the aggrieved and avenging party. Aristotle
passing over example as a motive, confines the object of
punishment to the amendment or correction of the of
fender. But Plutarch has not made the same omission:
for he has said, that (( where immediate punishment fol
lows the execution of a heinous crime, it both operates to
deter others from committing the same crime, and ad
ministers some degree of consolation to the injured and
suffering person. }) And this is what Aristotle calls
commutative justice. But these matters require a more
minute inquiry. We may observe therefore that there is
nothing contrary either to human or divine law, in pun
ishments, which have the good of the offender, or that
of the injured party, or of any persons whatsoever in
view.
The three proper ends are obtained by that kind of
punishment, which some philosophers have called correc
tion, some chastisement, and others admonition. Paulus
the Lawyer, has given it the name of correction;
Plato styles it a lesson of instruction, and Plutarch a
medicine of the soul, reforming and healing the suf
ferer, while it operates as a painful remedy. For as all
deliberate acts, by frequent repetition, produce a pro
pensity, which ripens into habit, the best method of re
forming vices in their earliest stage is to deprive them of
their sweet savour by an infusion of subsequent pain. It
is an opinion of the Platonists, repeated by Apuleius,
that (( impunity and the delay of reproof are more severe
and pernicious to an offender than any punishment what
soever, }) and, in the words of Tacitus, <( violent dis
orders must be encountered with remedies proportionably
strong. }>
VII. The power of inflicting the punishment, subserv
ient to this end, is allowed by the law of nature to any
one of competent judgment, and not implicated in sim
ilar or equal offences. This is evident as far as verbal
reproof goes, from the maxim of Plautus, that <( to bestow
merited reproof upon a friend is useful, upon certain
occasions, though by no means a grateful office. }> But in
all kinds of constraint and compulsion, the difference
made between the persons, who are allowed, and who are
not allowed to exercise it is no appointment of natural
law, but one of the positive institutions of the civil law.
For no such natural distinction could be made, any
farther than that reason would intrust parents with the
THE RIGHTS OF WAR AND PEACE 227
peculiar use of such an authority, in consideration of their
affection. But laws, in order to avoid animosities, have,
with respect to the authority of punishing-, passed over
the common kindred subsisting among mankind, and con
fined it to the nearest degrees of relation: as may be
seen in many records, and particularly in the code of
Justinian, under the title of the POWER OF RELATIVES TO
CORRECT IN ORDER TO REFORM OFFENDERS. And CyrUS, in
the v. book and viii. chapter of Xenophon's history of
the Expedition, addresses the soldiers to the following
purport, (( If I punish any one for his good, I am willing
to submit to justice ; but would it not be equally reason
able that parents and masters should submit to justice,
for having1 corrected children, or the Surgeon be respon
sible for having used the incision-knife, where the patient's
case required it ? M
But this kind of corrective punishment does not extend
to death, which cannot be considered, as a benefit in
itself, except INDIRECTLY and BY WAY OF REDUCTION, as it
is called by Logicians, who, in order to confirm negatives,
reduce them to things of an opposite kind. Thus, in
Mark xiv. 21, when our Saviour says, that it were better
for some, they had never been born, so, for incurable
dispositions, it is better, that is would be a less evil, to
die than to live; since it is certain that by living- they
will grow worse. Plutarch calls such men a pest to
others, but the greatest pest to themselves. Galen says
that capital punishments are inflicted to prevent men
from doing harm by a longer course of iniquity, and to
deter others by the fear of punishment, adding that it is
better men should die, when they have souls so infected
with evil, as to be incurable.
There are some, who think that these are the persons
meant by the Apostle John, who describes them as sin
ning a sin unto death. But as their arguments are not
satisfactory, charity requires that no one should be
deemed incorrigible, except upon the clearest grounds.
So that punishment with such an end in view can only
be inflicted for important causes.
VIII. The benefit accruing to an injured person from
the punishment of an offender consists in his being se
cured in future against a recurrence of the same injury
from that offender, or from others. There are three
ways of preventing this recurrence — by removing the
offender — by depriving him of the power of doing harm,
*28 HUGO GROTIUS
or lastly by compelling him to better habits of thought
or action, which is the reformation produced by the pun
ishment already spoken of. It is not every kind of
punishment, which can produce such effects; it must be
open and conspicuous, to operate as an example, that
may deter others from the commission of the same
crimes. A vindictive punishment, inflicted by an injured
individual, or by any other person, when it is restrained
by bounds and limitations of this kind, has nothing un
lawful in it considering the law of nature by itself,
apart from all human and divine institutions, and every
adventitious circumstance, that may create a deviation
from the primitive dictates of nature. We have said that
it may be inflicted by any other individual, as well as
by the injured person: for it is comformable to nature,
that one man should assist another. But as our judg
ment is apt to be biassed by our affections, in cases,
where our interest is concerned; since the formation of
families into states, judges have been appointed, and in
vested with the power of punishing the guilty, whereby
the natural liberty of personal redress, originally allowed
to individuals, was abolished, or at least abridged. And
it is only in places, on the seas for instance, where no
judicial remedy can be obtained, that this natural liberty
continues in force. There is a circumstance related of
Julius Caesar, applicable to this subject. While he was
only in a private station, being taken prisoner by some
pirates, after he had redeemed himself by a sum of
money, he applied to the proconsul for redress. But his
application being neglected, he fitted out a certain num
ber of ships, attacked and defeated the pirates, and
ordered them all to be crucified.
The practice of private individuals, exercising punish
ment, was the origin of single combats, so familiar to
the Germans before the introduction of Christianity, and
not yet sufficiently laid aside. We are informed by
Velleius Paterculus, in his second book, that the Germans
were surprised to see the forms of Roman jurisprudence,
and those disputes, which they themselves decided by the
sword, settled by law. By the Jewish law, the nearest in
blood to the deceased were allowed to kill a murderer, if taken
beyond the places of refuge. And the Jewish interpreters
observe, that in GENERAL the infliction of punishment, as
a retaliation for murder, it intrusted to no hand, but
that of the judge: as it is difficult for an individual in
THE RIGHTS OF WAR AND PEACE 229
his own case to moderate his resentment. The same
custom of allowing individuals to avenge their own wrongs
prevailed among the ancient Greeks, as we find from the
words of Theoclymenes, in Homer's Odyssey. But it
prevailed most in countries, where public courts of justice
were not established. From hence St. Augustin defines
those wars to be just, which are intended to avenge
injuries. And Plato, in his twelfth book ON A COMMON
WEALTH, justifies the prolongation of hostilities, till the
aggressor is reduced to submit to just, and equitable
terms.
IX. GENERAL utility which was considered as the third
end proposed by punishment, may be divided into the
same number of parts, as the benefit accruing from
thence to individuals. For these are the objects in view,
either to prevent the individual, who has injured one
person, from doing injury to others : an object which can
be accomplished only by removing the offender, disarm
ing him of the means of farther injury, or by reforming
him: or it may be inflicted to deter others from being
allured, by an example of impunity, to commit acts of
molestation or enmity. And the infliction of punishment,
for such reasons, is a RIGHT granted by the law of nature
to every individual. Upon this principle, Plutarch ob
serves in the life of Pelopidas, that good men are designed
by nature for the office of perpetual magistracy, and
superiority belongs to those, in whom the characters of
truth and justice unite.
But as it requires a painful degree of patience to
examine into facts, and no inconsiderable share of skill
and equity to affix the extent of punishments ; in order to
prevent quarrels from arising through the presuming con
ceit, which every man entertains of his own wisdom, and
to which others are averse to yield; in all well regulated
communities, it has been usual to select for the tribunals
of justice those, who were deemed worthy of such honour,
or likely to become so, from their integrity and wisdom.
Democritus has said, there would have been no occasion
for laws to prevent every man from living according to
his own humour, if one had not done injury to another.
For envy was the origin of strife. But as we have just
observed, that it happens, in the case of revenge, so in
this kind of punishment, inflicted for the sake of example,
there are traces and remains of ancient law, in those
places, and among those persons, that are subject to no
23o HUGO GROTIUS
CIVIL jurisdiction; and in certain other cases besides.
Thus any Hebrew, according to the customs of that
people, if he should turn away from God, or from the
law of God, or should seduce others to false worship,
might immediately be put to death by any one whatso
ever. The Hebrews call that an act of ZEAL, which was
first done by Phinehas, and which afterwards became a
custom. Thus Mattathias slew a Jew, who was polluting
himself with Grecian rites. In the same manner, in the
book commonly called the third book of Maccabees, it is
related that three hundred other Jews were put to death
by their own countrymen. Nor could any other pretext
be assigned for stoning Stephen, and conspiring against
Paul. Philo, and Josephus abound in instances of this
kind. There are many countries where we may trace
the remains of primitive law, in the plenary power al
lowed to masters over their slaves, and to parents over
their children, extending even to inflict the punishment
of death. So the Ephori of Sparta might put a citizen
to death without the formality of trial. From what
has been said, it is easy to infer what punishment the law
of nature authorises, and how far it has remained in force.
X We come now to consider whether the law of the
Gospel has confined that liberty within closer bounds.
It has been observed in another part of this treatise,
that it is not surprising that some things, which are al
lowed by natural and civil law, should be forbidden by
the divine law, owing to its great perfection, and the
superiority of its rewards over any thing that human na
ture can bestow. To the attainment of which it is not
unreasonable that virtues should be required, far exceed
ing the simple precepts of nature. Those kinds of cor
rection that leave neither any mark of infamy, nor any
permanent injury, but are suited to the age, or other
circumstances of the sufferer, if inflicted by those, who
derive such a permission from human laws, for instance
by parents, guardians, or masters, contain nothing re
pugnant to the precepts of the Gospel, as may be clearly
understood from the nature of the thing itself. For
they are remedies to the mind no less harmless than
medicines ungrateful to the palate are to the body. But
as to revenge the case is different For the infliction of
punishment, only to gratify resentment, so far from be
ing conformable to the Gospel, has been shewn above to
be repugnant even to the law of nature.
THE RIGHTS OF WAR AND PEACE 231
The Jewish law indeed not only forbids the cherishing
of hatred against a neighbour, that is, one of the same
country and people, but requires certain common acts of
kindness to be bestowed even upon enemies of that de
scription. The Gospel therefore, comprehending all men
under the appellation of neighbour, not only forbids us
to hurt our enemies, but commands us to do them good;
a commandment clearly stated in the Gospel of St.
Matthew. Yet the law permitted the Jews to seek re
venge for injuries of a more grievous kind, not with
their own hands, but by appealing to the judge. But Christ
does not give us the same permission, as appears from
that opposition which he makes between the permissions
of former times, and those of his own law. <(You have
heard that it was said an eye for an eye — but I say
unto you, love your enemies, etc.w
For although what follows relates peculiarly to the re
pelling of injury, and, in some measure, abridges this
permission, yet it passes a much greater censure upon
revenge, rejecting it as an indulgence suitable only to a
more imperfect, and carnal state.
To inflict punishment by way of retaliation was disap
proved of even by those of the Jews, who were dis
tinguished for their worth and wisdom; because they
regarded not only the LETTER, but the PURPOSE and SPIRIT
of the law. This appears from Philo, in whose writings
we find the Jews of Alexandria, upon the calamity of
Flaccus, their persecutor, addressing themselves to God in
the following language, (< We do not rejoice, O Lord, in
the calamity or punishment of an enemy, being taught
by thy holy laws to feel for the miseries of men.^ And
in this case we may apply that general command given by
Christ to forgive all who have offended or injured us, that
is, neither to do, nor to wish them evil, through resent
ment of the evil they have done to us. But what can be
said of revenge, not as regarding the past, but as pro
viding security for the future ? Here too Christ requires
of his followers the same disposition to pardon injuries,
particularly, if the offender shews any probable signs of
repentance. Luke xvii. 3. Eph. iv. 32. Col. iii. 13. In
those passages a full remission is intended, such a remis
sion as restores the offender to his former situation of
friendship or confidence : and consequently nothing can be
required of him under the name of punishment. Besides,
if there were no such marks of repentance, the reparation
232 HUGO GROTIUS
of a loss is not to be pursued with to much rigour; a
doctrine inferred from the precept of Christ enjoining" us
to give up the garment along with the cloak.
But if it is likely that connivance at an offence will be
attended with imminent inconvenience and even danger
to ourselves, we should be contented with such securities
as may be effectual, and at the same time operate with as
little prejudice as possible to the offender. For even
among the Jews, the law of retaliation was not in use, as
we are informed by Josephus, and other writers of that
nation. But in addition to the expence incurred, which
the law treats of as a separate point, the injured party
usually received a pecuniary fine instead of retaliation;
the repayment of expences being considered simply as a
restitution, and not a penalty.
It remains now to consider punishment, as providing
for the PUBLIC and not INDIVIDUAL security, which is ac
complished either by removing the guilty person out of
the way or by restraining him from doing farther mis
chief, or by deterring others through the severity of
example, none of which means it has been clearly proved
were abolished by Christ; for in giving his precepts he
affirmed that he destroyed no part of the law. The law
of MOSES indeed, which in these respects was to remain
in force as long as the Jewish Polity existed, strictly en
joined magistrates to punish murder and other similar
crimes. But if the precepts of Christ could exist in con
junction with the law of Moses, as far as it imposed cap
ital punishments, surely they may exist in conjunction
with human laws, which in this respect are but an imi
tation of the divine laws.
XI. Some, in support of an opposite opinion, allege the
supreme mercy of God, as it is displayed in the new
covenant, and which is given as an example for men,
and for magistrates, in particular, to follow, who, in the
exercise of authority, execute the laws of the Deity.
This opinion may in some measure be true, but not to
that extent, which the authors of it intend. For the
great mercy of God displayed in the new covenant has
a peculiar reference to offences against the primitive law,
or even against the law of Moses, before the time that
men had received a knowledge of the Gospel. For of
fences committed after the promulgation of the Gospel,
especially if they are accompanied with a hardened ob
stinacy, are treated with much severer judgments than
THE RIGHTS OF WAR AND PEACE 233
any that were declared by Moses. For God punishes
sins of that kind not only in a future state, but in the
present life. But for sins of that kind, to obtain the
act of mercy and indulgence, the offender must inflict
punishment upon himself, not in a slight or trivial man
ner, but with a heartfelt sorrow, and resolution to sin
no more.
In the same manner it is maintained that if men are
actuated by repentance, they are ENTITLED to impunity.
We do not say that men are never actuated by sincere
repentance; but it is not every kind of avowal or ac
knowledgment, by which God is moved to remit the
WHOLE of a punishment, as appears from the case of
David. As the supreme judge therefore might dispense
with the full penalty of the law, inflicting death, and yet
exercise no inconsiderable severity upon offenders, so now
he may dispense with the sentence of eternal death, at
the same time leaving the sinner to find an early grave
by the stroke of some calamity, or by the hand of human
justice.
XII. and XIII. Another objection made against capi
tal punishments is that such a kind of sentence and
execution is cutting off a criminal from all possibility
of repentance. But those, who make the objection, must
know, that in cases of that kind, venerable and upright
judges use the greatest precautions, and suffer no one
to be hurried away to execution, without a reasonable
time allowed for reflection and deep abhorrence of his
crime: a repentance, which though prevented by the in
terposing hand of death from producing the fruits of
righteousness, we have reason to suppose, from the case
of the thief pardoned on the cross, may be accepted
with God.
But if on the other hand it be said that longer life
might have been of more avail to serious repentance, we
may observe that, in some cases, the reply of Seneca
may be made, that to men of that description death is
often the greatest blessing which can be bestowed; for,
in the words of Eusebius, their career of wickedness
cannot otherwise be shortened, or reformed. These in
addition to the preceding arguments in the former part
of this treatise may be deemed a sufficient answer to
those, who assert that all capital punishments, and even
all punishments, without exception, are abolished by the
precepts of our Saviour. The Apostle, consigning to
234 HUGO GROTIUS
the office of kings the use of the sword, as an exercise
of his divine commission to avenge all wrongs, instructs
us to pray for kings, that, as true Christians, in their
royal capacity, they may be a protection to the inno
cent. An end, which even after the introduction of the
gospel, could not easily be obtained, owing to the de
pravity of mankind, if the violence of some were not
restrained by the exemplary punishment of others. Such
authority is the more necessary, when even in the midst
of so many examples and punishments, the lives of the
innocent are scarcely secure. There have been indeed,
it cannot be denied, happy instances where the sentence
of death was changed for that of perpetual labour, a
practice, as we are informed by Diodorus, followed by
Sabacon, king of Egypt, a prince renowned for his
piety. Balsamon observes that the penal laws of Rome,
inflicting death, were most of them changed by the
Christian emperors of later times, and other kinds
of punishment were substituted, that the guilty
might receive deeper impressions of repentance, and
their punishment operate as a more durable exam-
pie.
XIV, From what has been said, it may be inferred,
how unsafe it is for a private Christian, whether from
motives of personal interest, or from those of the public
good, to take upon himself the punishment of an offender,
and particularly to inflict death. Although, as it has been
said before, it may, IN SOME CASES, be allowed by the law
of nations. A permission, that has given rise to the
laudable practice, prevailing in some countries of furnish
ing adventurers with public instructions and commissions
to chase and capture pirates, wherever they may be
found. But those adventurers may be considered as dis
charging a public duty rather than as acting upon their
own authority.
XV. A custom not unlike to which prevails in many
places, of not allowing individuals to bring criminal
charges against others at their own pleasure: that office
belonging to persons invested with public authority to
undertake it. So that no one can contribute towards
shedding the blood of another, but as an act of necessary
duty. In reference to this custom, a canon of the council
of Eliberis excluded from the communion any believer
who had been instrumental in causing the proscription
or death of another.
THE RIGHTS OF WAR AND PEACE 235
XVIII.* It is proper now to consider whether all wicked
acts are of that kind, which are punishable by human
laws. In reply to which we may answer that they cer
tainly are not. — In the first place, mere acts of the mind,
or criminal intentions, though by subsequent confession,
or some other accident, they may come to the knowledge
of others, are nor punishable by human laws. Because,
as it was proved in a former part of this treatise, it is
not consonant to the law of nature, that INTENTIONS ONLY
should give rise to any right, or obligation amongst men.
And in this sense the maxim of the Roman law is to be
taken, THAT NO ONE DESERVES PUNISHMENT FOR MERE
THOUGHTS. Yet this does not prevent intentions, when
they have an influence upon the conduct, from being
considered as actual deeds, and equally deserving of
punishment.
XIX. In the second place, even outward acts, cannot
be punished by men where they arise through some in
evitable infirmity of human nature. For although there
can be no sin, except where there is a freedom of will,
yet to be at all times free from all infirmity and sin, is
more than can be expected from the condition of man. So
that Sopater, Hierocles and Seneca among the Philoso
phers; Philo among the Jews; Thucydides among the
historians; and innumerable writers among Christians
have maintained that sin is interwoven with our very
nature. Nay indeed, a doubt may be entertained whether
such acts can rightly and properly be called sins. For
though seeming to be voluntary actions, they will be
found, when minutely considered, not to proceed from a
free and deliberate exercise of the will. (< Laws, says
Plutarch in the life of Solon, should be framed to suit
possible cases, the legislator may obtain every beneficial
end by punishing a few offenders, where the indiscrim
inate punishment of multitudes would be attended with
no good effect. >J
There are some actions, which though not imputable
to human nature itself, are inevitable consequences of
the influence of bodily habits on the mind. Actions like
these are punishable in human courts, owing to the crim
inality of voluntary contracting, or of not sufficiently
guarding against, those habits.
* Sections XVI and XVII of the original, relating only to the ref
utation of certain abstruse opinions, are omitted in the translation. —
( Translator. )
236 HUGO GROTIUS
XX. In the third place, human courts of justice cannot
take cognizance of those offences, which neither directly
nor indirectly, affect the public or individuals. For no
reason can be assigned, why such offences should not be
left to the judgments of God, whose all-seeing eye must
know them, whose equity will weigh them, and whose
power can punish them. It would be unnecessary there
fore, and presumptuous in human tribunals to assume
such decisions. However we must except from this rule
those corrective kinds of punishment, designed for the
reformation of offenders, even where their conduct is no
way injurious to others.
Neither are those actions punishable, which are directly
opposite to the virtues of compassion, liberality, or grati
tude, in the performance of which virtues natural justice
allows of no compulsion.
XXI. The point, necessarily to be considered next, is
the opinion, whether it is lawful some times to grant par'
don. For the Stoics maintain it not to be lawful, as may
be seen from a fragment in Stobaeus, under the title of
MAGISTRACY, from Cicero's speech for Murena, and towards
the conclusion of Seneca's books on Clemency; but their
arguments are fallacious, and unsubstantial. They say
(<that pardon is the remission of a penalty, that OUGHT
to be paid; but a wise man does every thing, which he
OUGHT to do.^ Here the fallacy lies in the use of the
word OUGHT. For if it means that an offender owes a
penalty, that is, that he may be punished without injus
tice, it will not necessarily follow that the person who
does not punish him, is doing what he ought not to do.
But if the word be taken to imply that a good man, or
a wise man, ought at all events, to exact the penalty, it
may be observed in reply that THIS does not always hap
pen, and therefore, in this sense, the penalty or punish
ment may be considered, not as a debt, but only a
permission. And this will hold good, both before and
after the establishment of penal laws.
XXII. Before the establishment of penal laws, punish
ment, beyond all doubt, might be inflicted; because by
the law of nature, every offender made himself subject
to punishment ; but it is not a natural and inevitable con
sequence of its being lawful, that it should be enforced.
For this depends upon the connection between the ends,
for which punishments were established, and the punish
ments themselves. If the ends proposed therefore are
THE RIGHTS OF WAR AND PEACE 237
not immediately necessary, in a moral point of view, or
if other ends of a different kind, but not less wise and
salutary should be devised, or that the ends originally
designed may be obtained by some other means, in all
these cases, the right of punishment may be saved, there
being no immediate occasion to inflict it. Thus for in
stance, where an offence is known to very few, there can
be no immediate occasion for a public punishment, by
way of exemplary exposure, which in some cases might
be even injurious to society rather than productive of
advantage. Upon which Cicero in a letter to his brother
makes a pertinent remark, respecting one Zeuxis, observ
ing, that <( had he once been brought into court, he could
not have been released, but there was no necessity that
a search should be made for him, in order to bring him
to trial. w — In the next place the right and end of punish
ment may be dispensed with, where a man's own ser
vices, or those of his family are sufficient to outweigh
the consideration of his offences. (< For, in tJie words of
Seneca, an act of kindness eclipses the fault of an injury. w
— And in the last place, where reproof operates upon an
offender, as a means of correction and amendment, or
where the injured party is satisfied with an acknowledg
ment of the offence, the occasion for punishment is done
away. It was this motive to clemency, which the son
of David had in view, where he observes that it behoves
the righteous to be merciful. For as all punishment,
especially of the more severe cast, has in it some thing,
which tho' not repugnant to justice, is at variance, at
least, with charity, reason easily suffers us to forbear in
flicting it, unless that forbearance is opposed by some
weightier, juster, and more undeniable motive of
charity.
XXIII. Cases may occur where it is absolutely neces
sary to inflict punishment, as upon notorious, and atro
cious criminals, or where it is for the public good, to
dispense with that severity, or where the judicial authori
ties may use their own discretion in mitigating or enforc
ing the sentence of the law. Upon which Seneca pertinently
remarks, that the exercise of lenity should always be an
act of free deliberation. As to the disputes of the Stoics
on these points, they are, in the opinion of Cicero and
others, debates upon words rather than things: conse
quently they are less worthy of philosophical contem
plation.
238 HUGO GROTIUS
XXIV. There seems to be a greater difficulty in decid
ing what is to be done, subsequently to the establish
ment of penal laws; because a legislator is bound, in
some measure, by his own laws. But this, as it was
proved in a former part of this treatise, is only true with
respect to the legislator, in his individual capacity, as a
private member of the state, but not in his public char
acter, in which he represents the whole Majesty and
Authority of the state itself. As such, he can entirely
repeal the law: for it is the nature of all human laws, to
depend upon the will of the maker, not only for their
origin, but also for their duration. Yet a lawgiver ought
not, upon trivial grounds, to repeal a statute, for, in so
doing he would be acting against the rules of sovereign
justice. But as the legislator has power to repeal the
whole of a law, so in the case of some particular person,
or individual action, he may relax its rigour, allowing it to
remain in other respects, as it stood before. As an exam
ple of this, the actions of the Deity may be cited, who,
according to the testimony of Lactantius, in enacting his
laws, did not deprive himself of the exercise of his mercy,
to grant pardons. <( The Emperor, says Augustin, may
recall his sentence, pardon and release a criminal ; because,
as he further explains it, the person who has power to
make laws, is not INVARIABLY bound to observe them. w
Yet this privilege of departing from the letter must never
be used but for the most important reasons. Although
such reasons cannot be precisely denned, yet it is certain
that, since the establishment of civil law, more weighty
ones are required to authorise such pardons, than before
that period. Because punishments have derived an addi
tional sanction from the authority of the law, which ought
to be respected and observed.
XXV. The reasons for releasing any one from the pen
alties of the law, are of two kinds, either internal or
external.
An internal reason, to justify a departure from the sen
tence of the law, must be one, where the punishment is
severe when compared with the offence.
XXVI. An external reason is one arising from some
favourable circumstance in the character of the offender,
or some fair hopes that may be entertained of his future
conduct. And these reasons will have the most weight
in cases, where the particular motives for making the
law cease to operate. For although a general reason,
THE RIGHTS OF WAR AND PEACE 239
unopposed by any other of a weightier kind, may suffi
ciently authorise the enaction of a law; yet where the
peculiar reason, for which that law was made, has ceased
to exist, the relaxation of it, or even a total dispensation
will be attended with less danger to the universal au
thority of law in general.
Such a dispensation indeed is most allowable, where an
offence has been committed through ignorance, though
the party so committing it is not entirely free from
blame, or through some invincible infirmity of mind, in
all which cases, a Christian ruler will have an eye to the
example of God, who, under the old covenant, appointed
many such offences to be atoned for by certain expiatory
offerings : Levit. iv. and v. : and, in the New Testament,
he has expressly declared his intention to pardon such
offences, upon due repentance. Luke xxiii. 34. ; Heb. iv.
15. and v. 2. ; i Tim. i. 13. And Chrysostom observes,
that Theodosius, impressed with those words of our Sav
iour, <( Father, forgive them, for they know not what
they do, >} was led to grant a pardon to the people of Antioch.
XXVII. And hence it is evident, how mistaken Ferdi
nand Vasquez is in his judgment, when he maintains that
there can be no just reason for dispensing with a law,
that is, for releasing any one from its obligations, except
where the lawgiver, upon being consulted, expressly de
clares that he never intended it should be observed to
its full extent. For he does not make the proper dis
tinction between an equitable interpretation, and the en
tire relaxation of a law. For which reason, in another
place, he reproves Thomas, and Sotus, because they say
that a law is binding although the particular reason of
its being made may have ceased, as if they supposed that
the mere letter of the law was the source of its obliga
tion, an opinion which they never did entertain. So far
from every relaxation coming under the idea of equity,
properly so called ; those relaxations may be freely granted
or refused, which could not be done in matters of equity,
to which even acts of charity or those of reasonable pol
icy do not strictly belong. For there is a great difference
between the repeal of a law upon fair or urgent grounds,
and a legislator's declaring that at the time of passing the law
he had not the particular offence or case in contemplation.
Having thus far considered the nature of dispensations,
we proceed to a review of the merits upon which they
may be granted.
240 HUGO GROTIUS
XXVIII. From what has been said above, it appears
that in punishments, two thing's are to be regarded, the
offence, and the object for which they are inflicted. It
is consonant to justice that no one should receive greater
punishment than he deserves; upon which Cicero, in one
of his letters, observes, that, <(the same moderation,
which is commended in all other things, ought to be
observed in punishments. }> Papinian therefore calls
punishment an estimation of demerit; but this equality
established between crime and punishment, says Demos
thenes in his Letter in behalf of the children of Lycurgus,
is not the only thing to be considered: the object and
intention also of the delinquent must be weighed and
taken into the account. But, if care be taken to inflict
no more punishment than is due for an offence; it may
be greater or less, in proportion to the utility to be de
rived from thence.
XXIX. In examining the different degrees of guilt,
we ought to take into the account the motives which im
pelled the offender to commit the act — the motives, which
ought to have restrained him therefrom, and how far he
was capable of yielding to either. Scarce any one does
a wicked action without some motive, or so far strips
himself of the nature of man, as to delight in such acts
from pure malignity. Most men are led away by the
indulgence of their appetites, which engender sin. Under
the name of appetite also may be comprehended the
strong desire of avoiding evil, which is the most conso
nant to nature, and therefore to be reckoned amongst the
most laudable of all desires. So that offences committed
for the sake of avoiding death, imprisonment, pain, or
extreme want are generally deemed the most excusable.
Which gave occasion to Demosthenes to say, <( that we
are justly more exasperated against those, who, abound
ing in riches, commit evil actions, than against those,
who are impelled by want to do the same. Humane
judges are always ready to make allowance for neces
sity: but where wealth is united with injustice, no pre
text can be pleaded in excuse. M On this score, Polybius
excuses the Acarnanians, for having neglected, when
threatened with impending danger themselves, to fulfil
the terms of a defensive treaty made with the Greeks
against the Aetolians.
Besides the desire of avoiding evil there are other de
sires tending to some good, either real or imaginary.
THE RIGHTS OF WAR AND PEACE 241
Real advantages, considered apart from virtues, and
those actions, which have a virtuous tendency, are either
such as give delight themselves, or, like abundance of
riches, can procure those things, which administer to
pleasure. Among advantages purely imaginary, we may
reckon that of desiring to excel others, from a spirit of
rivalry, rather than from any laudable intention, or the
power of gratifying resentments, which the farther they
deviate from natural justice the more shocking they are to
natural feeling. These appetites the Apostle has de
scribed in terms of marked censure, calling them, the
(< lust of the flesh, the lust of the eye, the pride of life. »
Here the first member of the sentence expresses the love
of pleasure, the second implies the insatiable love of
riches, and the third comprehends the pursuit of vain
glory, and the desire of revenge.
XXX. The very injustice of all offences ought to be a
GENERAL motive with men, to restrain them from the
commission of them. For at present we are not consid
ering sins of any kind, but those, which extend their
consequences beyond the offender himself, and affect
others. And injustice is the more heinous and criminal
in proportion to the greatness of the injury, which it
inflicts.
In the highest rank of crimes and misdemeanours there
fore, we may place those, which are carried into com
plete execution: and lower in the scale we find those
criminal designs, which have proceeded some degrees,
but not to the last stage of completion. For the aggra
vation of a criminal intent is measured by the length to
which it goes. In either class that kind of injustice is
most notorious, which tends to disturb the common
peace of society, and therefore is injtirious to greater
numbers. Private wrongs follow in the next degree.
The greatest of which are those affecting life, and very
great, though somewhat inferior in the degrees of enor
mity, are those, that disturb the peace of families, which
is founded on the marriage-contract. And the last de
scription of wrongs are those affecting the property of
individuals, either by taking it with open violence, or
obtaining or injuring it by fraudulent means.
Some are of opinion that a more accurate order of
division might have been used; but that which is here
followed is the same used by God himself in the delivery
of his commandments. For under the name of parents
16
242 HUGO GROTIUS
are included not only those, who are naturally such, but
sovereign princes, magistrates, and rulers of every de
scription, whose authority is the key-stone of the fabric
of society. Next follows the prohibition of murder; the
prohibition of adultery, as a violation of the marriage
bond; the prohibition of theft, and false evidence: and
the catalogue of offences concludes with the prohibition
of criminal desires. Among the immediate causes to
restrain the commission of a crime, not only the cruelty
of the act itself, but all the remote and possible conse
quences should be taken into the account. If a fire is
begun, or the barriers, that keep out the waves, are
broken down, the perpetrator brings upon his own head
the blood of thousands, and all the guilt of that ruin by
which they perish.
In addition to the general characters of injustice above
described, we may annex the crime of being undutiful
to parents, unkind to relatives, or ungrateful to bene
factors, which are each of them a violation of natural,
and in some respects of civil law. The repetition of
these offences too aggravates their enormity: because
wicked habits are sometimes worse than wicked actions.
Hence we may comprehend the natural justice of that
rule, which the Persians followed, comparing the past life
of an offender with his present transgression. And this
ought to have some weight in cases where a crime does
not originate from habit, but from a momentary occasion.
But not so, where a course of former rectitude has been
changed into an unvaried course of wickedness. For in
such cases, God himself has declared by the mouth of his
prophet Ezekiel, that he has no regard to the former life.
Even profane writers have the same clear views upon
the subject; for Thucydides observes, that degeneracy
from a righteous to a wicked course incurs double pun
ishment: for offences are least pardonable in those, who
know the difference between right and wrong. In this
respect all praise and admiration are due to the wisdom
of the primitive Christians, who, in estimating the mag
nitude of offences, weighed the preceding and the subse
quent conduct of a transgressor against the action, for
which he was to be punished, as may be seen from the
council of Ancyra, and other councils. It heightens the
enormity of an offence, where it is committed in viola
tion of an express prohibition of the law. For, in the
language of Tacitus, <(the fear of prohibition may some-
THE RIGHTS OF WAR AND PEACE 243
times operate as a restraint, but where men once act in
defiance of that, fear and shame have lost all their
force. »
XXXI. The capacity of the person too, with respect to
judgment, disposition, age, education, and every other
circumstance must be taken into consideration, when we
look for resistance, or submission to the suggestions of
wicked inclinations. The thought of immediate danger
augments fear, and recent, unallayed pain inflames anger;
so that in either case the calm dictates of reason cannot
be heard. Offences therefore springing from the influ
ence of such impressions, are of a less odious complexion
than those arising from the love of pleasure, or the in
dulgence of hatred. Because there is less excuse for actions
of the latter kind, the delay, or total forbearance of which
could occasion no serious inconvenience. For it must
always be kept in mind, that where there are more power
ful impediments to the exercise of judgment, and more
urgent persuasives to natural feeling, the criminality of
an offence is proportionably softened. And these are the
rules for measuring the degrees of pardon or punishment.
XXXII. The Pythagoreans maintain that justice lies
in proportioning the punishment to the offence: a rule
which cannot be admitted to the full extent of requiring
an aggressor to suffer nothing more than a bare requital
of the injury he has occasioned. For this is at variance
with the most perfect laws, which in cases of theft some
times require fourfold, and sometimes fivefold restitution
to be made. And the Athenian law, besides compelling
a thief to pay double the value of what he had taken
sentenced him to many days' imprisonment. Among the
Indians, as we are informed by Strabo, the person, who
had maimed another, was condemned, in addition to the
penalty of retaliation, to lose his hand. Nor is it right,
as Philo, in explaining the punishment of murder, justly
observes, for the suffering of an innocent and guilty per
son to be exactly the same. And hence it is easy to see
why certain crimes not carried into actual execution, and
therefore less injurious than those, which are so, are
punished only proportionably to the design. — In this man
ner false witnesses were treated by the Jewish law; and
by the Roman law, those who walked ready armed to
commit murder. Consequently a greater degree of pun
ishment is due, where the criminal intention is com
pleted. But as death is the severest punishment that
244 HUGO GROTIUS
can be inflicted, and one that can never be repeated ; the
sentence of all human law rests there: though by the
custom of some countries death is accompanied with tor
ture, in cases of extreme atrocity.
XXXIII. In many instances, the magnitude of a pun
ishment can only be measured by the situation of the
person on whom it is to be inflicted. Thus a fine im
posed upon the poor would be a heavy sentence, though
it would scarely affect the rich; and a man of high rank
would feel the weight of a disgrace, that would but
lightly touch an ignoble person. Such distinctions are fre
quently used by the Roman law, often degenerating into
acts of partiality; a fault from which the law of Moses
is entirely free. And the above rules may be considered
as the scale for estimating the different degrees of pun
ishment.
XXXIV. Though punishment does not exceed the
bounds of justice, yet in certain cases it may be miti
gated in favour of a criminal, from motives of mercy,,
except where such lenity to the guilty is deemed cruelty
to the innocent, whose safety is thereby endangered.
For the escape of a criminal is often an encouragement
to his own perseverance in iniquity, and to that of
others, who are encouraged by the example. Necessity
indeed requires the sharpest remedies for the suppres
sion of crimes; especially, where the incentives of habit
and a facility to commit them prevail.
XXXV. The divine law given to the Hebrews punished
the stealing of cattle from a pasture with more severity than
breaking into a house, on account of the ease with which
the former of those crimes might be committed. Exod.
xxii. 1-9. Justin in speaking of the Scythians, describes
them as <( punishing theft with more severity than any
other crime; for as they have no covered habitations to
protect their flocks, and herds from depredations, what
could be safe, if thieving were allowed ? }) Though the
FAMILIARITY of certain crimes may prevent us from being
surprised at their perpetration, it by no means diminishes
their atrocity, or demands a mitigation of punishment.
But, as Saturninus says, <(the giant-strides of crimes
must be impeded with the strongest bands. }) In trials
for offences, clemency may be indulged, but in the pas
sing of laws severity should be regarded : For the GENERAL
nature of law requires that offences should be pursued
with rigour: but in trials, in which individuals are the
THE RIGHTS OF WAR AND PEACE 245
objects concerned, there may be circumstances to aggra
vate or diminish the offence: which leaves room for the
discretionary exercise of rigour or lenity.
XXXVI. and XXXVII. The inclination to mitigate
penalties, where the urgent motives to enforce them no
longer exist, is a point of compassion perfectly distinct
from the abolition of punishment altogether.
Nor has any thing been omitted, that might tend to
clear up this difficult and delicate question. But every
point, we trust, has been examined in its proper place,
either respecting the magnitude of crimes, as measured
by the injury done, the habitual commission of such
offences, or the influence of the motives, sufficient to en
courage or restrain them. Indeed the character of the
offender affords the most conclusive means for judging
of his capacity to commit the crime; and that of the
sufferer often contributes something towards enabling us
to estimate the due proportion of the penalty. The cir
cumstances of the time, when — the place, where — or
the facility, with which a crime is perpetrated, tend to
aggravate, or lessen its enormity. The length of time
intervening between a criminal design and its execution
gives us some opportunity to examine how far the per
petrator was actuated by a malicious purpose. But the
true complexion of a crime is to be discovered, partly
from the nature of those appetites, to which it owes its
birth; and partly, on the other hand, from the nature of
the motives which ought to have restrained them. By
this class of appetites the magnitude of a crime may be
judged of; and the consequences are the motives which
should operate to restrain them.
XXXVIII. It has been shewn before, and it is a truth
founded upon historical fact, that wars are undertaken,
as acts of punishment, and this motive, added to that of
redress for injuries, is the source, from which the duties
of nations, relating to war, take their rise. But it is not
every injury, that can be construed into a just ground
of war. For laws, whose vengeance is meant to protect
the innocent, and to fall upon the guilty, do not regard
every case, as a sufficient warrant for their exertion.
So that there is much truth in the opinion of Sopater,
who says that there are trivial and common offences,
which it is better to pass over unnoticed, than to punish.
XXXIX. The maxim laid down by Cato, in his speech
in defence of the Rhodians, that it is not right any one
246 HUGO GROTIUS
should be punished upon the bare suspicion of his hav
ing intended to commit aggression or injury, was well
applied in that place; because no positive decree of the
people of Rhodes could be alleged against them, nor was
there any other proof beyond the CONJECTURE of their
wavering in their policy. But this maxim is not uni
versally true.
For where intention has proceeded to any outward and
visible signs of insatiable ambition and injustice, it is
deemed a proper object of jealousy, and even of punish
ment. Upon this principle, the Romans, as may be seen
from Livy's account in the xlii. book and xxx. chapter
of his history, thought themselves justified in declaring
war against Perseus, King of Macedon, unless he gave
satisfactory proof, that he had no hostile intentions
against them, in the naval and military armaments,
which he was preparing. And we are informed by the
same historians, that the Rhodians urged it as a rule
established by the laws and customs of all civilized
states; that if any one wished the destruction of an
enemy, he could not punish him with death, unless he
had actually done something to deserve it.
But it is not every unjust design, though indicated by
some outward act, which can authorize and direct hos
tilities. For if the actual commission of crimes and ag
gressions is, in some cases, proper to be overlooked,
much more will it be a mark of deliberate caution to
use the same forbearance, where nothing further than
the pure design of aggression appears. A forbearance
which Cicero justifies upon the possibility that the enemy
may have repented of his design, before the execution
of it. No conclusive inference can be drawn from the
severity of Mosaic Law against all intended acts of
impiety and murder. For, in comparing human lawrs
with the divine counsels, whose depths we cannot sound,
we are liable to run into error ; and the impulse of anger,
where it is attended with no fatal consequence, is a
case in which the infirmity of human nature calls for
pardon. For altho' the precepts of the decalogue are
designed to lay a restraint upon unlawful desires as well
as upon unlawful actions, yet in addition to the spiritual
sense, that which is called the carnal, or external com
mandment applies to those dispositions that are mani
fested by some open act. This interpretation may be
deduced from a passage in the gospel of St. Mark, c. x.
THE RIGHTS OF WAR AND PEACE 247
19, where the prohibition to defraud is immediately pre
ceded by the injunction not to steal. So that intended
aggressions are not to be punished by force of arms,
except in cases of atrocity, where the very design
threatens consequences of the greatest danger. All
punishment therefore must have in view either security
against future aggressions, reparation for the injury done
to national or private honour, or it must be used as an
example of awful severity.
XL. It is proper also to observe that kings and those
who are possessed of sovereign power have a right to exact
punishment not only for injuries affecting immediately
themselves or their own subjects, but for gross viola
tions of the law of nature and of nations, done to other
states and subjects. For the liberty of inflicting punish
ment for the peace and welfare of society, which belonged
to individuals in the early ages of the world, was con
verted into the judicial authority of sovereign states and
princes; a right devolving upon them not only as rulers
of others, but as subject to the controul of no earthly
power. For that is a right, which can belong to no
subject. It is never safe to leave the entire assertion of
a man's own rights, or the punishment of his wrongs,
to his own judgment; for he cannot be entirely disinter
ested in his own cause. Partiality will make him fall
short of, or prejudice will make him exceed the bounds
of justice. It was the theme of praise bestowed upon the
heroes of antiquity, that in their most arduous undertak
ings they avenged the wrongs of others rather than their
own. Upon this principle there can be no hesitation in
pronouncing all wars to be just, that are made upon
pirates, general robbers, and enemies of the human race.
So far this opinion agrees with that of Innocentius and
others, who maintain all war to be lawful against those
who have renounced the ties and law of nature. An
opinion directly the reverse is held by Victoria, Vasquez,
Azorius, Molina, and others, who deem an aggression
done to a prince, his government, or his subjects, or civil
jurisdiction over the aggressor, the only justifiable warrant
for inflicting punishment, particularly the punishment of
hostilities. For they suppose punishment to be an effect
purely arising from the authority of civil law, whereas,
according to the proofs established in the beginning of
this treatise, it was shewn to be a right resulting entirely
from the law of nature,
248 HUGO GROTIUS
If the opinion of those, from whom we differ, be ad
mitted, no enemy will have a right to punish another, by
the prosecution of a just war; a right, which notwith
standing is allowed and confirmed by the practice of all
nations, not only after the defeat of an enemy, but dur
ing the continuance of a war ; and that too, not from any
civil jurisdiction, but from a natural right, which prevailed
long before the foundation of states, and which still
exists in all its force, in places, where the community
consists of families distinct, and united as the subjects
of one sovereign.
XLL, XLIL, XLIII. But certain precautions are neces
sary to prevent us from being carried away by an opin
ion that civil customs, though founded upon just reasons,
and received among many nations, are to be reckoned
as a part of the law of nature. And in the next place,
it is necessary to guard against enumerating as prohibi
tions of natural law, things which are not proved to be
so, as certain kinds of marriages the taking of interest
for the use of money, and other positive injunctions of
the divine, or Mosaic law. The third rule is, to make
an accurate distinction between general principles, such
as the duty of living according to the dictates of rea
son, and those of a more particular though not less obvi
ous meaning; as the duty of forbearing to take what
belongs to another. To which many truths may be added
though not quite so easy of apprehension: among which
may be named the cruelty of that kind of punishment,
which consists in revenge, delighting in the pain of an
other. This is a method of proof similar to that which
occurs in mathematics, the process of which rises from
self-evident truths to demonstrations, the latter of which,
though not intelligible to all alike, upon due examina
tion obtain assent.
As then in matters of civil law, ignorance is deemed
an excuse, so with respect to the law of nattire, wherever
infirmity of understanding forms an invincible obstruction
to the knowledge of its rules, such infirmity may be
alleged as a vindication. For as, in cases of unavoidable
ignorance a great degree of the guilt of sin is removed;
so it is in some measure softened wherever this igno
rance subsists, though it may be owing to former negli
gence. And for this reason, Aristotle compares barbarians,
in their rude, unformed state, to persons, whose appe
tites are rendered sickly by disease. Plutarch also
THE RIGHTS OF WAR AND PEACE 249
observes that there are certain infirmities and disorders.
which naturally infect the soul. Once for all, by way of
conclusion we may add that wars undertaken to inflict
punishment may be suspected of injustice, except there
be manifest and enormous aggressions, with other con
spiring causes, to vindicate nations for having recourse
to arms.
XLIV. The progress of the work has necessarily led to
the consideration of offences against God; the propriety
or impropriety of punishing which by force of arms is a
fit subject of inquiry.
Admitting the affirmative part of the question, we may
observe that as in ecclesiastical affairs Bishops are in
trusted with a Catholic, or general power; so kings, besides
the care of their own immediate states and subjects, may
be regarded as protectors of the human race. The best
argument, on the negative side of the question, against
the justice of such wars, is the sufficiency of the divine
omnipotence to avenge its own wrongs. Yet the same
may be said of other offences. For the Deity possesses
sufficient power to punish them, although he leaves them
to the sentence of human tribunals. Some will urge and
maintain that other kinds of offences are punished only
in cases, where others are uninjured or endangered by the
commission of them. On the other hand, it may be said
that men punish not only offences, which directly hurt
others, but even those, which affect them indirectly, as
suicide and other similar crimes.
Although religion is a concern between the soul of man
and his Maker alone, its influence on human morals is of
no inconsiderable importance. So that Plato had reason
to call it the bulwark of authority and law, and the bond
of every thing venerable in social order and discipline.
Every false opinion in divine things, says Plutarch, is
pernicious, betraying itself in the disorders of the imagi
nation, wherever it takes root, and springs up into action.
So that Aristotle reckons the care and support of religion
the first of public concerns. This is a truth applying not to
any particular state, but to all governments, and to human
society in every shape. An avowal which Xenophon makes
the characteristic of a great and wise prince, attributing
to Cyrus a declaration of his firm persuasion that the
more his subjects feared God, the more obedient he should
find them to his laws, and the more attached to his per
son. But once remove the motives of religion, says
250 HUGO GROTIUS
Tully, and you destroy faith, the intercourse between man
and man, and justice the most excellent of all virtues.
The opinions of Epicurus afford a sufficient proof of
this: for in banishing the providence of God from his
system, he made justice nothing but an empty name,
springing from human conventions, founded on self-inter
est, and restraining men from the commission of crimes
by no other principle but that of fear.
But there is a wider sphere, than the internal welfare
of independent states, on which religion operates. In
the separate society, which every kingdom, state, or
country forms within itself, the place of religion may
occasionally be supplied by the influence and execution
of municipal laws. But in all the transactions of the
great community at large, where civil laws are silent,
and tribunals give way to the decision of the sword, the
law of nature and of nations, founded upon the fear of
God, and obedience to his will, is the standard of right
to which Kings and Sovereign states appeal; a viola
tion of which is regarded as a violation of the divine
law.
XLV. But to take a closer view of the subject, we
must observe that true religion, which is the same at all
periods of time, rests upon four evident and universally
acknowledged truths. The first of which is the being
and unity of God, — the second, that God is not any of
the things, that can be seen, but of a nature too sublime
to be the object of human conception, or of human sight,
— the third is, that with the eye of his providence he
regards the events of this world, and regulates them
with the most equitable and unerring judgments, — the
fourth is, that he is the creator of all things, except
himself. And these four truths are unfolded and laid
down in an equal number of commandments, the first of
which plainly declares the unity of God — the second
forbids any representation, by painting or image, to be
made of that being, who is invisible to mortal eye.
Tacitus bears testimony to the spiritual nature of the
Jewish religion: for he says, that <(the Jews have noth
ing but a mental conception of one God, and they look
upon every attempt to represent him under the appear
ance of human form, as a profanation of his heavenly
nature. J> — From the third commandment we deduce his
knowledge of all human transactions, even of our very
thoughts; an omiscience upon which the obligation and
THE RIGHTS OF WAR AND PEACE 251
sanctity of oaths is founded. For God is a witness even
of the secret designs of the heart, so that every solemn
oath is an appeal to his justice and his power, for the
vindication of truth, and the punishment of falsehood. —
The fourth commandment presents us with an account of
the creation of the world, to commemorate which God
appointed the sabbath, commanding it to be observed
with a degree of reverence above every other sacred
institution. For the violation of any other rites, such
as those respecting forbidden meats, was left to the dis
cretionary punishment of the law: but offences against
the sabbath were capital ; because, considering the nature
and design of its origin, such contempt implied a dis
belief, that the world was created by God. Now the
creation of the world by God affords a tacit proof of his
goodness, wisdom, eternity and power: and the effect of
this contemplative knowledge is the offering of honour,
love, worship and obedience to God. So that Aristotle
says that the man, who denies that God ought to be
honoured, or parents loved, should be taught to renounce
his error, not by reasoning, but by punishment. And,
in another place, he observes that some actions
are proper on certain occasions, but reverence for
the majesty of God is requisite at all times, and in all
places.
The truth of those contemplative opinions may undoubt
edly be proved from the nature of things; the clearest
of which proofs is the evidence of sense, shewing the
existence of things, which naturally leads us to consider
the time, when they had no being.
But as all are not able to understand these arguments
and others of the same kind, it is sufficient to observe
that in all ages and all countries of the world, with very
few exceptions, these opinions have found a general
reception with those who were too plain in their deal
ings, and ingenuous in their designs, to impose upon
others, and with many, who had too much sagacity to
be deceived themselves. But when amid such variety of
laws, customs, and opinions, there is so general an agree
ment upon one point; that agreement may be adduced
as a proof, that such a belief owes its origin to the primi
tive ages of the world, from whence it has been derived
to us: when we consider too that it has never been
clearly refuted, it is a sufficient reason to establish our
faith.
252 HUGO GROTIUS
XLVI. There is no excuse therefore for the rejection
of those opinions, even in cases, where there is no intui
tive sagacity to discover new proofs, or to comprehend
old ones: as there are so many guides both in nature
and reason to lead men to the knowledge of those truths,
and as no solid arguments have ever been produced to
establish a contrary belief. But as human punishments
form the subject of our present inquiry, it is right to
make a distinction between opinions themselves, and the
manner of deviating from them. The belief in a supreme
being, and in the controul of his providence over human
affairs, is one of those universal tenets to be found in
all religions, whether true or false. And in reality to
deny the being of a God, and to deny the interposal of
his providence in human affairs, amounts in its moral
consequences to the same thing. And it is for this reason
these two opinions have been inseparably united in all
ages, and among every civilized people. Consequently
we find, that in all well governed states, wholesome laws
have been enacted to restrain those, who disturb those
opinions, which have always been regarded as the chief
support of social order; and all contempt, shewn to those
opinions, has always been considered as contempt shewn
to society itself, and which it consequently has a right
to punish.
XLVII. There are other truths not equally self-evi
dent, such as these, that there are not more Gods than
one; that no visible thing, neither the world, nor the
heavens, nor the sun, nor the air is God; that the world,
and the matter of which it is formed, have not existed
from all eternity, but were made by God. So that we
see the knowledge of these truths disfigured, and almost
entirely obliterated among many nations by the lapse of
time. And this might the more easily happen, as there
were no legal provisions made to preserve the purity of
these truths, which were not considered as essential to
the very existence of all religion. The law indeed given
to that people, who were instructed in the clear knowl
edge of these truths, by the mouths of the prophets, by
miracles seen with their own eyes, or brought to their
ears by the reports of the most undoubted testimony,
that law, though it expresses the greatest abhorrence of
the worship of false gods, does not inflict the punish
ment of death upon all convicted of that crime, but only
in particular instances, where they have seduced others
THE RIGHTS OF WAR AND PEACE 253
into idolatry, — or where a state has introduced the wor
ship of unknown Gods, — or where the true worship of
God, and obedience to his laws have been forsaken for
the worship of the stars, which St. Paul calls serving the
creature above the creator, an offence, which was, for
some time, punished among- the descendants of Esau.
Those too who offered their children to Moloch, that is,
to Saturn, were punished with death. Yet the Canaan-
ites, and the neighbouring nations, who had long been
sunk into the most depraved superstitions, were not con
signed by God to immediate punishment, but were left
to fill up the measure of their crimes. And there were
other nations, where, in the language of Scripture, God
winked at the times of this ignorance. Where men have
had no means of arriving at the knowledge of a true
God, as their superstitions and errors are excusable, so
where, in despite of knowledge, they have deified Dae
mons, and vices, which they knew to be such, their
superstitions are not to be called errors, but impieties.
And no less impious is the supposed homage, that is
paid to God with the blood of innocent human victims,
and Darius king of the Persians, and Gelo king of Syra
cuse, are commended for abstaining from such practices.
Plutarch informs us of some barbarians, who would have
been punished by the Romans for offering human vic
tims to the deity, had they not pleaded the antiquity of
the custom, which was admitted as an excuse, though
they were strictly enjoined not to follow the same custom
in future.
XLVIII. From the kind of evidence on which Chris
tianity rests, it is plain that no force should be used with
nations to promote its acceptance. It is not merely by
natural arguments it can gain assent ; for it has made an
addition of many things to natural religion. Its evidence
rests upon the history of Christ's resurrection, and upon
the miracles performed by himself and his Apostles. So
that it is a matter of fact proved by the most undeniable
evidence, and of great antiquity. Therefore a doctrine
of this kind cannot be thoroughly received upon the first
hearing of it, without the secret assistance of God: an
assistance not given as a reward for the merit of works ;
so that wherever it is withheld or less copiously bestowed ;
it is done for reasons, which though just, are generally
unknown to us, and therefore not punishable by human
judgments. For it is the custom in the sacred writings
254 HUGO GROTIUS
to assign the divine pleasure as the cause of things un
known to us.
There is another reason of no less weight, which is that
Christ being the author of a new law, will have no one
brought to embrace his doctrine by the fear of human
punishments. Nor is the reason at all weakened by the
objection drawn from the parable of the marriage-supper,
where it is said the messengers are commanded to
compel the guests to come in. For the term, COMPEL,
here signifies nothing more than an earnest entreaty, a
sense, in which it is used in other parts of the New
Testament, implying an earnest request made to any
one.
XLIX. But to obstruct the teachers of Christianity by
pains and penalties is undoubtedly contrary to natural
law and reason : for the doctrine of Christ, apart from all
the corruptions added by the inventions of men, contains
nothing hurtful, but every thing beneficial to society.
The thing speaks for itself, and even those who were
strangers to the doctrine itself were obliged to acknowl
edge the truth of this. Pliny says that the Christians
bound themselves by an oath to commit neither theft,
nor robbery, nor to violate their word. It was a common
saying (( Caius Seius is a good man, but he is a Chris
tian. »
Nor indeed can any danger be apprehended from the
spreading of doctrines, calculated to inspire greater sanc
tity of manners, and the purest principles of obedience to
lawful sovereigns. Philo has recorded a beautiful saying
of Augustus, who observed that the assemblies of the Jews
were not Bacchanalian revels, or meetings to disturb the
public peace, but schools of virtue.
L. It seems unjust to persecute with punishments those
who receive the law of Christ as true, but entertain
doubts or errors on some external points, taking them
in an ambiguous meaning or different from the ancient
Christians in their explanation of them. A point which
is proved by what has been said above, and by the an
cient example of the Jews. For, possessing a law, which
allowed them to inflict temporal punishments, they never
exercised that authority upon the Sadducees, who denied
the doctrine of a resurrection: a doctrine of the greatest
truth, though but faintly delivered in that law, and
under a typical application of words and circum
stances.
THE RIGHTS OF WAR AND PEACE 255
But if there should be any weighty error, that dis
cerning judges could easily refute by an appeal to sacred
authority, or to the opinions of antiquity; here too it
would be necessary to make allowance for ingrafted
opinions, that have grown up to form an inseparable part
of the human mind, and for the zealous attachment of
every one to his own tenets; an evil which Galen says
is more difficult to be eradicated than any constitutional
disease.
CHAPTER XXI.
ON THE COMMUNICATION OF PUNISHMENT.
How accessories are liable to punishment — Sovereign Princes or States
answerable for the misconduct of their subjects, when they know it,
and do not endeavour to prevent it — Sovereigns bound not to protect
offending subjects, but to deliver them up or punish them — The
rights of suppliants belong to the unfortunate and not to the guilty —
Suppliants may be protected while the inquiry into their case is still
pending — How far states are amenable to punishment — All the dif
ferent exceptions stated — Children not answerable for the offences
of parents — The moral government of God in this respect con
sidered — Individuals not answerable for offences, to which they have
not given consent — Heirs, how far answerable for the acts of their
ancestors.
I. THE next topic of inquiry relates to the communica
tion of punishment, as inflicted upon accomplices, who, in
that capacity, cannot be said to be punished for the guilt
of others, but for their own. And from what has been
said above upon the loss sustained from injury, it may be
understood who are the persons, that come under this
description. For the partnership in loss, and the partner
ship in guilt are regulated by nearly the same principles.
Yet the obligation to repair a loss does not always imply
guilt, except where there has been any notorious malice,
in which case every damage renders the party, who has
occasioned it, liable to make reparation. So that persons
ordering the commission of any wicked or hostile act,
giving the requisite consent to it, supplying the aggressor
with assistance, or protection, or, in any other shape, par
taking of the crime, by giving counsel, commendation, or
assent to his act, or when they have power to forbid the
commission of such an act, by forbearing to exercise their
authority, or by refusing to afford the succour, which they
are bound by the law of nature, or by treaty to give to
the injured party, by not using with the offender that
power of dissuasion, which they have a right to do, or
lastly by concealing what they ought to make known, in
(256)
THE RIGHTS OF WAR AND PEACE 257
all these cases, such persons are punishable as accom
plices, if they are convicted of that degree of malice,
which constitutes a crime, and merits punishment : points
which have before been discussed.
II. The case will be made clearer by examples. A
civil community is no more bound than any other society
by an act of individual members, except that act be done
by its express consent and authority, or it has neglected
to disavow such a proceeding. Hence it is formally stip
ulated in almost all treaties that no acts or aggressions
are to be ascribed to a state, except those, which are
done in the name of the sovereign, and by persons act
ing expressly under the authority of his commission. So
a father is not answerable for the misconduct of his
children, a master for that of his servants, nor a ruler
for the acts of those under him, unless there appears in
any of these some connivance, or encouragement in pro
moting that misconduct, or those acts.
In the case of a sovereign's responsibility for the acts
of his subjects, there are two things to be considered,
which require minute inquiry, and mature deliberation,
and those are the forbearance, and the encouragement
or protection, which he has shewn to their transgres
sions.
As to forbearance, it is an acknowledged point, that
when he knows of a delinquency, which he neither for
bids nor punishes, when he is both able and bound to do
so, he becomes an accessory to the guilt thereof. Cicero,
in his speech against Piso, says, <( it makes no great dif
ference especially in a consul, whether he harasses the
government by moving ruinous laws, and making mis
chievous speeches, or suffers others to do the same. If
a slave has committed a murder with the knowledge of
his master, the master becomes answerable for the entire
deed, as it was done with his concurrence. }>
But, as we have said before, besides the knowledge of
a deed, to constitute a participation in the guilt, the
person so knowing it, must possess the power to prevent
it. And this is what is meant by the legal phrase, that the
knowledge of a crime, when it is ordered to be punished,
is taken in the sense of forbearance or connivance, and
it is supposed that the person, who ought to have pre
vented it, did not do so. In this place knowledge implies
a concurrence of will, and connivance a concurrence of
design. A master therefore is not bound by the act of
17
258 HUGO GROTIUS
a slave, who has claimed his freedom, and done any thing
in despite of his master, because the knowledge of a
crime without ability to prevent it, by disclosure or some
other means, cannot be construed into an act of guilt.
So parents are bound by the acts of children ; but only in
cases where they have the children under their authority.
On the other hand, altho' by having them in their
power, they might have prevented their misconduct,
they will not be answerable for it, unless they had a
knowledge of it also. For there ought to be a concur
rence of knowledge, and forbearance or encouragement
to involve any one in the guilt of another's actions; cir
cumstances all of which by a parity of reasoning may be
applied to the connection between sovereigns and sub
jects: a connection founded on principles both of natural
and civil law.
III. The matter that necessarily comes next under con
sideration is the case of those, who screen delinquents
from punishment. It was before observed that, accord
ing to the law of nature, no one could inflict punishment,
but a person entirely free from the guilt of the crime
which he was going to punish. But since established
governments were formed, it has been a settled rule, to
leave the offences of individuals, which affect their
own community, to those states themselves, or to their
rulers, to punish or pardon them at their discretion. But
they have not the same plenary authority, or discretion,
respecting offences, which affect society at large, and
which other independent states or their rulers have a right
to punish, in the same manner, as in every country popular
actions are allowed for certain misdemeanors. Much less
is any state at liberty to pass over in any of its subjects
crimes affecting other independent states or sovereigns.
On which account any sovereign state or prince has a right
to require another power to punish any of its subjects
offending in the above named respect: a right essential
to the dignity and security of all governments.
IV. But as it is not usual for one state to allow the
armed force of another to enter her territories under the
pretext of inflicting punishment upon an offender, it is
necessary that the power, in whose kingdom an offender
resides, should upon the complaint of the aggrieved party,
either punish him itself, or deliver him up to the discretion
of that party. Innumerable instances of such demands
to deliver up offenders occur both in sacred and profane
THE RIGHTS OF WAR AND PEACE 259
history. Thus the other Israelites required the Benjamites
to deliver up offenders, Jud. xx. — And the Philistines de
manded of the Hebrews the surrender of Samson, as a
criminal, Jud. xv. — In the same manner the Gauls made
a demand that the Fabii should be surrendered for having
fought against them. Sylla too, as Sallust informs us,
urged Bocchus to deliver up Jugurtha, and by so doing to
relieve the Romans from the bitter necessity of implicat
ing HIM for his erroneous conduct in the same guilt with
that most desperate villain. Yet all these instances are
to be understood not as strictly binding a people or Sov
ereign Prince to the actual surrender of offenders, but
allowing them the alternative of either punishing or de
livering them up. For it was upon this ground, as we are
informed, that the Eleans made war upon the Lacedae
monians, because the latter neglected to punish their sub
jects, who had committed aggressions upon that people ;
that is, they had neither punished nor delivered them up :
for the obligation may be taken either way, that being
left to the choice of the aggrieved person, or nation, in
order to make the satisfaction the more complete.
The surrender here meant is nothing more than deliv
ering up a citizen or subject to the power of another
state to decide upon his punishment. But this permis
sion neither gives nor takes away any right, it only re
moves an impediment to the prosecution of a right.
Wherefore if that other people make no use of the per
mitted right, the offender, who has been delivered up, is
in such a situation, that he either MAY or may NOT be
punished: either of which may happen in the case of
many offences. But the right of a state, as to the en
joyment of its own laws, and many other advantages, is
not lost by any particular act without a formal decree
and judgment, unless in any way it has been previously
enacted, that certain acts, or certain omissions, shall
amount to a forfeiture of some particular rights and
privileges. In the same manner, goods, if surrendered,
but not accepted, will remain the property of the former
owner. But if the surrender of a citizen has been ac
cepted, and, by some accident, the person so surrendered
shall afterwards return home, he will no longer be a
citizen, except by some new act of grace. What has
been said of punishing or giving up aggressors, applies
not only to those, who always have been subjects of the
sovereign, in whose dominions they are now found, but
260 HUGO GROTIUS
to those also, who, after the commission of a crime, have
fled to some place for refuge.
V. Nor do the so much talked of rights of suppliants,
and the inviolable nature of asylums at all weaken the
argument that has been advanced. For the advantages
of such protection are designed only for those, who are
the victims of unmerited persecution, not for those who
have committed crimes injurious to mankind, and de
structive to society. Gylippus, the Lacedaemonian, as
may be seen in the xiii. book of Diodorus Siculus, speak
ing of the rights of suppliants, says, that they were
originally introduced, as measures of compassion to the
unfortunate, and not a screen for malicious and wanton
offenders, who have nothing but punishment to expect.
And a little after he says, when such men, prompted by
malice, or rapacity have plunged into evils, they have
no right to talk of misfortune or to wear the name of
suppliants. For that is a privilege granted by the laws
of nature to the innocent, who are beaten down by the
hard and oppressive strokes of ill fortune. But the refuge
of compassion is withheld, where every line of a life has
been marked with cruelty and injustice. Thus according
to that law, which partakes of the wisdom of its divine
author, asylums were open to those who had killed any
one by a weapon escaping from their hand: slaves too
were allowed places of refuge, but deliberate murderers,
or those, who had disturbed the peaceful order of the
state, found no protection even from the altar of God.
Philo, in explaining this law says, that even the temple
affords no refuge to the impious.
The more ancient of the Greeks acted upon the same
principle. It is said that the Chalcidians refused to deliver
up Nauplius to the Grecians, and the reason alleged was
his having cleared himself of the charges made against
him. There was among the Athenians an altar dedicated
to Mercy; it is mentioned by Cicero, Pausanias, Servius,
and also by Theophilus, and it is described at full length
by Statius in the xii. book of his Thebais. The poet ex
plains to what description of men it afforded shelter: it
was, he says, to those who were driven from their homes
by the calamity of war, or stripped of their kingdoms by
usurpers. Tacitus in the third book of his Annals, and
6oth chapter, reprobates the custom, prevailing in his time
among the cities of Greece, of making it an act of religion
to protect offenders from the punishment due to their
THE RIGHTS OF WAR AND PEACE 261
crimes. Such offenders therefore ought either to be pun
ished, or delivered up, or, at least, ordered to withdraw.
Perseus the Macedonian king, clearing himself to Martius
from the charge of screening those, who had attempted
the life of Eumenes ; said, (< as soon as I was apprised by
you of their being in Macedonia, I ordered immediate
search to be made for them, peremptorily commanding
their perpetual banishment from my kingdom. w
The right of demanding the surrender or punishment
of criminals that have fled into other kingdoms, has, in
most parts of Europe, during the present, and the imme
diately preceding centuries, been generally exercised in
cases, where the crimes were such as affected the safety
of the state, or were attended with notorious atroc
ity. It has been usual to pass over, with mutual conniv
ance, crimes of an inferior kind, except where it has been
agreed to the contrary by express treaty. Nor can it be
concealed that where robbers and pirates have gained a
truly formidable power, it has often been deemed an act
of humane policy both in Sovereign Princes, and States
to exercise forbearance towards them, rather than to drive
them to greater acts of desperation by treating them with
all the rigour, which they deserve.
VI. If the act, of which refugees and suppliants are
accused, is not prohibited by the law of nature or of
nations, the matter must be decided by the civil law of
the country, from which they come. This was a received
opinion in ancient times, as we find from the language
of Aeschylus, in whose Tragedy of the Suppliants, the
King of Argos, addressing a number of the daughters of
Danaus, on their coming from Egypt, says, <( If the sons
of Egypt exercise controul over you, maintaining that
they are authorised to do so by the law of the state, as
being the nearest allied by blood, who can resist them ?
It is for you to prove that, according to the laws of your
country, they have no authority over you.®
VII and VIII. It has often been a celebrated topic of
discussion, whether a whole community can be punished
for misconduct. And this is the -proper place for that
inquiry.
It was shewn in a former part of this treatise, that a
body politic though it may seem to vary by a succession
of new members, continues the same, as long as it re
tains its form. In which case it seems liable to punish
ment no less than individuals. On the other hand bodies
262 HUGO GROTIUS
politic seem to possess many privileges peculiar to them
selves, such as having a common treasury, a common
seal, laws, and other similar advantages. But there are
some distinctions, which they particularly derive from
the INDIVIDUALS of which they are composed. Thus we
say that Universities are learned, or Garrisons brave, ac
cording to the number of learned or gallant men, which
they respectively contain. Merit is a distinction of this
kind, as being a gift of nature to individuals, or an in
dividual acquirement, which no public body, OF ITSELF, can
have. So that upon the death or departure of those meri
torious individuals, the degree of merit, which any public
society derived from their presence, must become ex
tinct. In the same manner, the debt of punishment
which is considered as arising from some act of demerit,
must cease with the debt of the individual delinquents.
Arrian is justly commended for censuring the vengeance
retorted upon the Persians by Alexander, at a time, when
those, who had committed the original aggressions on the
Greeks, had long been laid in their graves. He passes a
like sentence upon the burning of Persepolis, as a retaliation
for what the Persians had done at Athens. Such acts of
retaliation, after a lapse of years, have been vindicated by
some writers, as an imitation of the slow, but unerring
progress of divine justice. But we must remember that
the ways of God are not as our ways, nor is the exercise
of his justice to be measured by our counsels. For if
descendents can claim no merit for the actions of their
FOREFATHERS, neither is it right they should be punished
for THEIR transgressions. The consequences of merit
indeed may be transmitted without injury, and therefore
without injustice; but it is not so with punishments.
IX. Having thus shewn that a communication of pun
ishment is necessarily connected with a participation in
guilt, it remains to consider whether punishment can be
extended to those, who are no way concerned in the
crime. In order to understand this clearly, and to pre
vent the mistakes that may arise from a similarity of
expression, where there is no similarity of facts, it will
be necessary to make use of some precautions.
X. In the first place there is a difference between a
loss DIRECTLY occasioned by any act, and one resulting
but INDIRECTLY from it. Now it may be called a direct
injury to deprive any one of what peculiarly belongs to
him as his right. An indirect injury is that which pre-
THE RIGHTS OF WAR AND PEACE 263
vents any one from possessing what he otherwise would
have done, by destroying the condition or means, which
gave him such a right. As an example, Ulpian says,
(< if any one has opened a well in his own ground, by
which the subterraneous streams of water, that would
have passed to the lands of another, are cut off, here no
fault is imputable to the person who has only exercised
his own right. M And in another place, he says, it makes
a great difference, whether any one directly does an
injury, or is only indirectly and unintentionally instru
mental in preventing another from reaping advantages,
which he would otherwise have enjoyed. And it is
absurd, says Paulus, another legal authority, for men to
be called rich before they possess the means of being
so. Thus when the property of parents is forfeited, it
is felt as an inconvenience by their children; though it
can not be considered as a direct punishment inflicted
upon them, because that property would never have
been theirs, unless the parents had retained it to their
last breath. On which Alphenus has made a just obser
vation, in saying, that, by the punishment of the father,
children lose that which would have come to them from
him, but things, which they do not receive from him,
such as the gifts of nature, or those derived from any
other quarter, remain untouched. Cicero relates that in
this manner the children of Themistocles were reduced
to want, nor does he think it unjust that the children of
Lepidus should share the same fate. And he says that
it is an ancient custom, and the received usage of all
states, the hardship of which nevertheless was greatly
softened by the laws of Rome at a later period. Thus
when a whole people is implicated in the misconduct of
the majority, which holds the representative character of
the state, and consequently loses its civil liberties, its
fortifications, and other privileges, the loss affects innocent
individuals, but only in those things, which they could
not have enjoyed, except as belonging to that com
munity.
XI. Besides, we must observe, that the offence of one
man may sometimes occasion inconvenience or loss to
another, and yet that offence may not be considered as
the immediate cause of the action, which is grounded on
the exercise of a right. This may be explained by an
example. Thus if any one has engaged for another's
debt, he brings himself into the dilemma named in the
264 HUGO GROTIUS
ancient proverb, that being- bound for any one is the
next stage to ruin; but it is a MAN'S OWN PROMISE, and
NOT ANOTHER'S HAVING INCURRED A DEBT, that is the real
cause of his obligation. For as a person, who has given
security for a purchaser, is not, properly speaking, bound
by the PURCHASE, but by his own PROMISE: so if any one
has engaged to be responsible for a delinquent, it is his
own ENGAGEMENT, and not the ACT OF THAT DELINQUENT,
which creates his obligation. And hence the incon
venience of that kind which any one incurs, must be
measured not by the delinquency of another, but by his
own power to enter into any such voluntary engagement.
In consequence of which no one can give surety to suffer
death for another; because no one has such power over
his own life, as to take it away himself, or to be bound
to forfeit it for another. Though the ancient Greeks
and Romans thought otherwise, and therefore they
maintained that a surety might be put to death for any
one, as may be seen in the well known story of Damon
and Pythias, and hostages were frequently punished in
this manner.
What has been said of life may be applied to the
limbs also, which no man has a right to part with, ex
cept for the preservation of the whole body. But if any
one has engaged to suffer banishment, to submit to a
pecuniary fine, or any other means of satisfying justice,
any thing he suffers on this account will not, strictly
speaking, be considered as a PERSONAL punishment, but
as the performance of an agreement.
Something like this occurs in the right, which any one
possesses dependent on another's will, both with respect
to the right of individuals, to private property, and to the
more extensive right to demesnes possessed by a state.
For if any one is deprived of such a thing owing to
another's fault, here the executive power depriving that
person, is not inflicting a punishment on HIM, but only
exercising a prior right.
XII. and XIII. Having laid down these distinctions, we
may observe that it is impossible that an innocent person
should suffer for another's crime. This does not proceed
from the reasons given by Paulus, who maintains that
punishment is designed for the reformation of the offender.
For it seems possible that an example may be made, ex
tending beyond the person of the criminal himself,
when it affects, in its consequences, those, who are nearly
THE RIGHTS OF WAR AND PEACE 265
related to him. So that it is not for the sake of example
only that punishment is inflicted, but because the obli
gation thereto arises from the demerit of the offending
party. Now every demerit must be of a personal nature,
as it proceeds from a man's own will, over which he is
supposed to exercise a perfect controul.
XIV. In the law given to the Hebrews, God threatens
to avenge the impiety of fathers upon their children. But
he has sovereign dominion over our lives and substance,
as being his gift, which he may take away from any one,
whenever he pleases, without assigning his reasons.
Therefore if he thinks proper to take away by a premature
or violent death the children of Achan, Saul, Jeroboam
or Ahab, he is exercising over them the right of sover
eignty, as well as that of punishment; imposing by that
awful example the more severe penalty upon the parents.
For if they survive their children, which was what the
divine law had most in view, and therefore did not extend
these threats beyond the time of great grand-children, a
period to which the age of man might reach, it is cer
tain that parents would be severely punished by such a
sight, the most afflicting of any they could witness. Or
if they should not survive such an event, to die under
such an apprehension would be a great calamity.
But it is proper to remark that examples like those are
never employed by God, except against crimes affecting
his divine Majesty, as false worship, perjury or sacrilege.
Indeed those threats of divine vengeance are not always
enforced; especially where any extraordinary virtue shines
in the characters and conduct of the children : as may be
seen in the xviii. chapter of the prophesy of Ezekiel.
Plutarch has discussed this topic with great eloquence in
his book on the remote vengeance of God.
As the Gospel so clearly unfolds the future punishments
of the wicked, all the threats contained in that new
covenant terminate in the persons of the offenders them
selves. But the ways of providence in these respects are
not the rule which men can follow. For God, even
without any reference to crime, is the sovereign lord and
disposer of human life, a commission which man is only
allowed to execute against the perpetrators of certain
crimes. Wherefore as that same divine law forbids
parents to be put to death for the offences of children,
so it exempts children from the same punishment for the
actions of their fathers: a lenity which is greatly com-
266 HUGO GROTIUS
mended by Joseplms and Philo. The same commendation
is bestowed by Isocrates upon the laws of Egypt; and
by Dionysius of Halicarnassus upon those of Rome.
XV. But if it is unjust in human laws to punish the
misconduct of parents in the persons of their children,
how much more severe was the law of the Persians and
Macedonians extending the penalties for crimes against
the state to every branch of the offender's relatives, in
the most remote degree, a law surpassing all others in
rigour ?
XVI. XVII. and XVIII, What has been said respecting
the punishment of children for the offences of their
fathers or forefathers, may be applied to the relation
subsisting between sovereigns and subjects. For it is a
relation springing from the contract of society, which
makes the sovereign the essential head, life and soul of
that body, in which his people form the members. As
the civil community therefore with its sovereign or head
forms but one body, there can be no separation of inter
ests, but what affects one part must be prejudicial or
serviceable to the whole.
XIX. Why should an heir, it has been sometimes asked,
be bound by other debts of his ancester, and not feel
the effects of his punishment for misconduct? to which
answer may be given, that the heir represents the person
of the deceased not in his merits or demerits, which are
purely personal, but in his property; an artificial mode
of preserving unbroken the chain of succession and
descent.
XX. And hence it follows, that if in addition to the
demerit of an offence, any new grounds of obligation
should arise connected with the punishment, they must
be discharged not properly as a punishment, but as a
debt. Thus the heir will be liable to pay the costs
awarded by a judgment after a contested suit, which is
considered in the light of a contract.
CHAPTER XXII.
ON THE UNJUST CAUSES OF WAR.
Differences between real and colourable motives — War atrocious with
out either of these motives — Wars of plunder, under the most
plausible pretexts, not justifiable — Causes apparently, but not really
just — Unnecessary advantage — Desire of a better soil — Discovery
of things belonging to others — Incapacity of the original owners —
j War not always justifiable under the pretext of asserting liberty —
Or of imposing a beneficial government upon a people against
their will — Emperor's pretensions to universal empire refuted — Pre
tensions of the Church — Imperfect obligations — Difference between
wars originally unjust and those afterwards becoming so.
I. IN a former part of this work, where the justice of
war was discussed, it was observed that some wars were
founded upon real motives and others only upon colour
able pretexts. This distinction was first noticed by Po-
lybius, who calls the pretexts, Ttpoyaaeis, and the real
causes, dirta?. Thus Alexander made war upon Darius,
under the pretence of avenging the former wrongs done
by the Persians to the Greeks. But the real motive of
that bold and enterprising hero, was the easy acquisition
of wealth and dominion, which the expeditions of Xeno-
phon and Agesilaus had opened to his view.
In the same manner, a dispute about Saguntum fur
nished the Carthaginians with COLOURABLE MOTIVES for
the second Punic war, but, in REALITY, they could not
brook the indignity of having consented to a treaty,
which the Romans had extorted from them at an unfa
vourable moment; and more especially as their spirits
were revived by their recent successes in Spain. The
real causes assigned by Thucydides for the Peloponne-
sian war, were the jealousies entertained by the Lacedae
monians of the then growing power of the Athenians,
though the quarrels of the Corcyreans, Potidaens, and
other secondary states were made the ostensible reasons.
II. There are some who have neither ostensible rea
sons, nor just causes to plead for their hostilities, in which,
as Tacitus says, they engage from the pure love of en
terprise and danger. A disposition to which Aristotle
(267)
268 HUGO GROTIUS
gives the name of ferocity. And in the last book of his
Nicomachian Ethics, he calls it a bloody cruelty to con
vert friends into enemies, whom you may slaughter.
III. Though most powers, when engaging in war, are
desirous to colour over their real motives with justifiable
pretexts, yet some, totally disregarding such methods of
vindication, seem able to give no better reason for their
conduct, than what is told by the Roman Lawyers of a
robber, who being asked, what right he had to a thing,
which he had seized, replied, it was his own, because he
had taken it into his possession ? Aristotle in the third
book of his Rhetoric, speaking of the promoters of war,
asks, if it is not unjust for a neighbouring people to be
enslaved, and if those promoters have no regard to the
rights of unoffending nations ? Cicero, in the first book
of his Offices, speaks in the same strain, and calls (< the
courage, which is conspicuous in danger and enterprise,
if devoid of justice, absolutely undeserving of the name
of valour. It should rather be considered as a brutal
fierceness outraging every principle of humanity. w
IV. Others make use of pretexts, which though plausi
ble at first sight, will not bear the examination and test
of moral rectitude, and, when stripped of their disguise,
such pretexts will be found fraught with injustice. In
such hostilities, says Livy it is not a trial of right, but
some object of secret and unruly ambition, which acts as
the chief spring. Most powers, it is said by Plutarch,
employ the relative situations of peace and war, as a
current specie, for the purchase of whatever they deem
expedient.
By having before examined and established the prin
ciples of just and necessary war, we may form a better
idea of what goes to constitute the injustice of the same.
As the nature of things is best seen by contrast, and we
judge of what is crooked by comparing it with what is
straight. But for the sake of perspicuity, it will be
necessary to treat upon the leading points.
It was shewn above that apprehensions from a neigh-
bouring power are not a sufficient ground for war. For
to authorize hostilities as a defensive measure, they must
arise from the necessity, which just apprehensions create;
apprehensions not only of the power, but of the inten
tions of a formidable state, and such apprehensions as
amount to a moral certainty. For which reason the opinion
of those is by no means to be approved of, who lay down as a
THE RIGHTS OF WAR AND PEACE 269
just ground of war, the construction of fortifications in a
neighbouring country, with whom there is no existing treaty
to prohibit such constructions, or the securing of a strong
hold, which may at some future period prove a means of
annoyance. For as a guard against such apprehensions,
every power may construct, in its own territory, strong
works, and other military securities of the same kind,
without having recourse to actual war. One cannot
but admire the character, which Tacitus has drawn of
the Chauci, a noble and high-spirited people of Germany,
(< who, he says, were desirous of maintaining their great
ness by justice, rather than by acts of ungovernable
rapacity and ambition — provoking no wars, invading no
countries, spoiling no neighbours to aggrandize themselves,
— yet, when necessity prompted, able to raise men with
arms in their hands at a moment's warning — a great
population with a numerous breed of horses to form a
well mounted cavalry — and, with all these advantages,
Upholding their reputation in the midst of peace. }>
VI.* Nor can the advantage to be gained by a war be
ever pleaded as a motive of equal weight and justice
with necessity.
VII. and VIII. Neither can the desire of emigrating to a
more favourable soil and climate justify an attack upon a
neighbouring power. This, as we are informed by Tacitus,
was a frequent cause of war among the ancient Germans.
IX. There is no less injustice in setting up claims, un
der the pretence of newly discovered titles, to what
belongs to another.
Neither can the wickedness, and impiety, nor any other
incapacity of the original owner justify such a claim. For
the title and right by discovery can apply only to countries
and places, that have no owner.
X. Neither moral nor religious virtue, nor any intel
lectual excellence is requisite to form a good title to
property. Only where a race of men is so destitute of
reason as to be incapable of exercising any act of owner
ship, they can hold no property, nor will the law of
charity require that they should have more than the nec
essaries of life. For the rules of the law of nations can
only be applied to those, who are capable of political or
commercial intercourse : but not to a people entirely desti
tute of reason, though it is a matter of just doubt, whether
any such is to be found.
* Section V of the original is omitted in the translation. — TRANSLATOR.
270 HUGO GROTIUS
It was an absurdity therefore in the Greeks to suppose,
that difference of manners, or inferiority of intellect made
those, whom they were pleased to call barbarians, their
natural enemies. But as to atrocious crimes striking at
the very root and existence of society, the forfeiture of
property ensuing from thence is a question of a different
nature, belonging to punishments, under the head of which
it was discussed.
XI. But neither the independence of individuals, nor
that of states, is a motive that can at all times justify
recourse to arms, as if all persons INDISCRIMINATELY had
a natural right to do so. For where liberty is said to
be a natural right belonging to all men and states, by
that expression is understood a right of nature, anteced
ent to every human obligation or contract. But in that
case, liberty is spoken of in a negative sense, and not
by way of contrast to independence, the meaning of
which is, that no one is by the law of nature doomed
to servitude, though he is not forbidden by that law to
enter into such a condition. For in this sense no one
can be called free, if nature leaves him not the privilege
of chusing his own condition: as Albutius pertinently
remarks, <(the terms, freedom and servitude are not
founded in the principles of nature, but are names sub
sequently applied to men according to the dispositions of
fortune. w And Aristotle defines the relations of master
and servant to be the result of political and not of
natural appointment. Whenever therefore the condition
of servitude, either personal or political, subsists, from
lawful causes, men should be contented with that state,
according to the injunction of the Apostle, (<Art thou
called, being a servant, let not that be an anxious con
cern ? w
XII. And there is equal injustice in the desire of re
ducing, by force of arms, any people to a state of servi
tude, under the pretext of its being the condition for
which they are best qualified by nature. It does not
follow that, because any one is fitted for a particular
condition, another has a right to impose it upon him.
For every reasonable creature ought to be left free in
the choice of what may be deemed useful or prejudicial
to him, provided another has no just right to a controul
over him.
The case of children has no connection with the ques
tion, as they are necessarily under the discipline of others.
THE RIGHTS OF WAR AND PEACE 271
XIII. It would scarce have been necessary to refute the
foolish opinion of some, who have ascribed to the Roman
Emperors dominion over the most remote and unknown
nations, if Bartolus, deemed a lawyer of the first emi
nence, had not pronounced it heresy to deny those pre
tensions. This opinion has been built upon the Roman
Emperor's some times having- styled himself Sovereign
of the whole world; a term which it was not unusual for
many people to apply to their own country. Thus in the
scriptures we find Judea frequently called the whole in
habited earth; therefore when the Jews, in their proverbial
expression, called Jerusalem the centre of the world,
nothing more is to be implied than that it was situated
in the middle of Judea.
As to the argument in favor of universal dominion from
its being so beneficial to mankind, it may be observed
that all its advantages are counterbalanced by still greater
disadvantages. For as a ship may be built too large to
be conveniently managed, so an empire may be too ex
tensive in population and territory to be directed and
governed by one head. But granting the expediency of
universal empire, that expediency can not give such a
right, as can be acquired only by treaty or conquest.
There were many places formerly belonging to the Roman
Empire, over which the Emperor has at present no con-
troul. For war, treaty, or cession have made many
changes, by which the rights of territory have passed to
other states or sovereign princes, and the standards of
different communities, whether kingdoms or common
wealths, now wave in places, which the Roman Eagle
once overshadowed with his wings. These are losses and
changes, that have been experienced by other powers no
less than that, which was once mistress of the world.
XIV. But there have been some, who have asserted the
rights of the church over unknown parts of the world,
though the Apostle Paul himself has expressly said that
Christians were not to judge those who were without the
pale of their own community. And though the right of
judging, which belonged to the Apostles, might in some
cases apply to worldly concerns, yet in its general nature
it was of a celestial rather than an earthly kind — a
judgment not exercised by fire and sword, but by the
word of God, proposed to all men and adapted to their
peculiar circumstances — a judgment exercised by dis
playing or withholding the seals of divine grace, as it
272 HUGO GROTIUS
might be most expedient — lastly, it was a judgment ex
ercised in supernatural punishments; in punishments
proceeding from God, like the punishments of Ananias,
Elymas, Hymenaeus, and others.
Christ himself, the spring, from whence all the power
of the church was derived, and whose life is the model
for the church to follow, said, his kingdom was not of
this world, that is, was not of the same nature, with
other kingdoms, otherwise, like the rest of sovereigns, he
would have maintained his authority by the power of the
sword. For if he had pleased to call up the aid of Legions ;
he would have called up hosts of Angels and not of
men. And every exercise of his right was performed by
the influence of divine, and not of human power; even
when he drove the sellers out of the temple. For the
ROD was the EMBLEM and not the INSTRUMENT of divine
wrath, as UNCTION was once a SIGN of healing, and not
the HEALING POWER ITSELF. St. Augustin on the xviii
Chapter of St. John, and 36 ver. invites Sovereign Princes
into this kingdom, in these terms, <( Hear, O Jews, and
Gentiles, hear, O earthly Sovereigns, I will not obstruct
your authority, for my kingdom is not of this world.
Be not alarmed, like Herod, who trembled, when he
heard that Christ was born, and slew so many innocent
children, hoping to include the Saviour in that calamity.
His fear shewed itself in cruel wrath. But my kingdom,
says Christ, is not of this world. Therefore enter this
kingdom without fear. Come with faith, and provoke
not the king to anger by your delay. w
XV. There is a caution too necessary to be given,
against drawing too close a parallel between ancient and
modern times. For it is but seldom that any one can
adduce a case exactly conformable to his own circum
stances. To draw such pretexts from the interpretation
of prophecy is the highest presumption. For no prophecy
that is yet to be fulfilled can be unfolded without the
aid of a prophetic spirit. The times even of events, that
are certain, may escape our notice. Nor is it every pre
diction, unless it be accompanied with an express com
mand from God, that can justify recourse to arms:
sometimes indeed God brings his predicted designs to
their issue by the means of wicked instruments.
XVI. As the imperfect obligations of charity, and other
virtues of the same kind are not cognizable in a court of
justice, so neither can the performance of them be com-
THE RIGHTS OF WAR AND PEACE 273
pelled by force of arms. For it is not the moral nature
of a duty that can enforce its fulfillment, but there must
be some legal right in one of the parties to exact the
obligation. For the moral obligation receives an addi
tional weight from such a right. This obligation there
fore must be united to the former to give a war the
character of a just war. Thus a person who has con
ferred a favour, has not, strictly speaking, a RIGHT to
demand a return, for that would be converting an act of
kindness into a contract.
XVII. It is necessary to observe that a war may be
just in its origin, and yet the intentions of its authors
may become unjust in the course of its prosecution. For
some other motive, not unlawful IN ITSELF, may actuate
them more powerfully than the original right, for the
attainment of which the war was begun. It is laudable,
for instance, to maintain national honour; it is laudable to
pursue a public or a private interest, and yet those ob
jects may not form the justifiable grounds of the war in
question.
A war may gradually change its nature and its object
from the prosecution of a right to the desire of second
ing or supporting the aggrandizement of some other
power. But such motives, though blamable, when even
connected with a just war, do not render the war ITSELF
unjust, nor invalidate its conquests.
18
CHAPTER XXIII.
ON DOUBTFUL CAUSES.
Origin of moral doubts — The dictates of conscience, though erroneous,
not to be violated — Opposite opinions supported by argument, or by
authority — In doubtful and important matters the safer side of the
question to be followed — In such cases it is right to abstain from
war — Disputes settled by conference or arbitration — Christian
duties — Whether single combat is allowable in order to avoid war
— In cases of equal doubt the claims of the present possessor to
be preferred — Where neither party is in possession, claims to be
divided — Whether a war can be just on both sides, explained by
a distinction.
I. THERE is much truth in Aristotle's observation that
moral reasonings can never amount to the certainty of
mathematical demonstration. Because in mathematical
reasoning, all the figures are considered in the abstract,
purely by themselves, and without relation to the circum
stances of time or place, so that there is nothing to warp
the judgment from the object immediately under con
sideration. Besides the figures in general form a direct
contrast to each other. Thus, for instance, there is no
intermediate line between a straight line and a curve.
But it is not so in morals, where the least circumstances
vary the subject, and admit a latitude of interpretation,
settling the points of truth and justice between two
extremes. So that between what is right and what is
unlawful there is a middle space, where it is easy to in
cline to the one side, or to the other. This occasions an
ambiguity somewhat like the difficulty of deciding the
precise moment, where the twilight begins, and where it
ends. From hence Aristotle concludes that it is some
times difficult to determine, between two extremes, what
line of conduct ought to be chosen or rejected.
II. But it must be laid down as a necessary principle, that
although an action may in reality be just, yet if the party
doing it, after weighing every circumstance, cannot recon
cile the act to his conscience, he incurs some degree of
guilt. « For whatever is not of faith, says the Apostle, is
sin ; » where, by the term faith he means a deliberate judg
ment of the mind. For God has given conscience a
(274)
THE RIGHTS OF WAR AND PEACE 275
judicial power to be the sovereign guide of human actions,
by despising whose admonitions the mind is stupified into
brutal hardness. For it often happens that judgment
can point out nothing certain, but hesitates; and when
such doubts and hesitations cannot satisfactorily be
cleared up, the rule of Cicero is a safe one to follow, who
says, that it is an excellent injunction, which forbids us
to do a thing of the rectitude or impropriety of which we
entertain a doubt.
But this rule cannot be applied, where of two things,
in the choice of which there is equal doubt, the one must
be done, in which case that must be selected, which seems
to be the least unjust. For on all occasions, where a
choice cannot be avoided, the less of two evils assumes
the appearance of a virtue.
III. But in doubtful cases, after examination the mind
seldom remains neuter, but inclines to one side, or the
other, persuaded either by the merits of the case, or by
respect for the judgment of those, who have delivered an
opinion upon the question. Now the merits of the case
are derived either from the causes, the effects/ or othef
concomitant circumstances.
IV. To apprehend such distinctions properly; practice
and penetration are necessary, and where men have not
in themselves a capacity for the active exercise of judg
ment it behoves them to follow the maxims of others,
who are distinguished by their wisdom and experience.
For, in the opinion of Aristotle, those things are probably
just, or true, which seem so to all, or to the greater part
of men of worth. And this is the method of judging
pursued by Sovereign Princes, whose engagements in the
affairs of life allow them but little leisure for study and
deliberation Thus the ancient Romans never undertook
wars, till they had consulted the sacred college, established
for that purpose, and the Christian Emperors scarcely ever
did so without advising with the Bishops, in order to be
apprized of any thing therein that might affect religion.
V. It may happen in many disputed points, that the
intrinsic merits of the case, or the opinions of the learned,
are equal on both sides. When that happens, if the mat
ters in discussion are of no great importance, there is
nothing to blame in the person, that makes his choice
either way. But in matters of moment, where the lives
of men are at stake, the decision should incline to the
safer side, according to the proverbial maxim, which pro-
276 HUGO GROTIUS
nounces it better to acquit the guilty than to condemn
the innocent.
VI. War then being an object of such weighty magni
tude, in which the innocent must often be involved in
the sufferings of the guilty, between wavering opinions
the balance should incline in favour of peace.
There are three methods, by which independent nations
may settle their disputed rights without coming to the
decision of the sword.
VII. The first method is that of conference. For, in
the words of Cicero, <( there being two methods of decid
ing quarrels, the one by discussion and the other by
force, the former, a peculiar characteristic of man, and
the latter, of the brute creation: when the first of these
methods fails, men are obliged to have recourse to the
latter.0 Mardonius, in the Polyhymnia of Herodotus,
blames the Grecians, who, being united in one language,
might settle their quarrels by messengers of peace, by
heralds, and negotiations, rather than by war.
VIII. The other method is that of compromise, which
takes place between those, who have no common judge.
Among innumerable instances of this kind in ancient his
tory, we may select that given by Xenophon in his
account of Cyrus, where that prince takes the king of the
Indians for arbitrator between himself and the king of
Assyria. The Carthaginians in their disputes with Masi-
nissa prefer a settlement of this kind before a decision of
war. Livy too informs us that the Romans themselves,
in a dispute with the Samnites, made an appeal to the
common allies of both.
The office of deciding wars and putting an end to the
contentions of armies was assigned, according to Strabo,
to the Druids of the Gauls, and upon the testimony of
the same writer, it formed a part of the priestly func
tions among the Iberians.
Surely then it is a mode of terminating their disputes,
balancing their powers, and settling their pretensions
worthy to be adopted by Christian Kings and States.
For if, in order to avoid trials before judges who were
strangers to the true religion, the Jews and Christians
appointed arbitrators of their own, and it was a practice
recommended and enjoined by St. Paul, how much more
ought such a practice to be recommended and enforced,
to gain the still nobler end of preventing the calamities
of war.
THE RIGHTS OF WAR AND PEACE 277
These and many other reasons of no less importance
might be advanced for recommending to Christian powers
general congresses for the adjustment of their various in
terests, and for compelling the refractory to submit to
equitable terms of peace.
IX. A third method of terminating disputes, without
hostilities, was by lot, a practice commended by Dion
Chrysostom in his speech on the interposition of fortune
in directing affairs, and it was commended long be
fore him by Solomon in the xviii. chapter of his Pro
verbs.
X. Nearly related to the last named method is that of
single combat, a practice recommended under the idea
that by the risque of two lives a quarrel might be de
cided, which would otherwise have cost the blood of
thousands. In Livy we find Metius addressing Tullus
in the following terms, <(let us try some method of de
termining to whom the pre-eminence shall belong, with
out wasting the blood of each people. w Strabo says it
was the practice of the ancient Greeks, and Aeneas pro
posed it to Turnus, as the most equitable way of settling
their pretensions. It is described too as the custom of
the ancient Franks.
XL Although in doubtful cases, both sides are bound
to devise every means of avoiding hostilities, yet it is a
duty more incumbent upon the claimant than upon the
immediate possessor of whatever may be the subject of
dispute. For it is a rule not only of civil, but of natural
law, that, where the pretensions are equal, those of the
possessor are to be preferred.
To the foregoing remarks an additional observation
may be made, that if any one, knowing his pretensions
to be just, cannot produce sufficient proofs to convict the
intruder of injustice, he cannot lawfully have recourse to
arms, because he has no OSTENSIBLE RIGHT, by which he
can compel the intruder to relinquish the possession.
XII. But where the right is ambiguous, and neither
party has possession, the pretender, who refuses to di
vide the claims, may reasonably be charged with injustice.
XIII. From what has been said it will not be difficult
to settle a much agitated question, whether, with respect
to those, who are the principal movers of a war, there
can be justice on both sides. For there are distinctions
proper to be made in the various acceptations of the
word JUST.
278 HUGO GROTIUS
A thing is said to be just, either as to its causes, or
its effects. The causes too may be confined either to
justice in a PARTICULAR acceptation, or they may be ex
tended so as to include under that name every kind of
rectitude. Again, a particular acceptation may be divided
into two kinds, one relating to the ACTION, and the other
to the agent.* An agent may be said to act justly, when,
in what he does, he commits no breach of STRICT LAW,
though his conduct may not be conformable to equity.
In a PARTICULAR acceptation of the word justice, with
regard to a matter in dispute, it cannot in war, any
more than in legal proceedings, apply to both sides.
For there can be no moral principle, commanding us,
under the same circumstances, both to DO, and to AB
STAIN from a particular action. It may happen indeed
that neither of two belligerent powers may act unjustly.
For no one can be charged with acting unjustly unless
he knows that he is doing so; but there are many, who
are not aware of the nature, extent, and consequences
of their measures. Thus in a law-suit, both parties may
sincerely believe that they have justice on their side.
For many things both in law and fact, which would es
tablish a right, may escape the notice of men.
In a GENERAL acceptation, an action may be called
just, where the agent is free from every kind of blame.
Yet in many cases an agent may deviate from the strict
rules of legal justice, and be liable to no blame,
when that deviation is owing to unavoidable ignorance,
there having been neither time nor opportunity sufficient
for him to know the substance, or perhaps existence of
the law. So it may happen in law-suits, that both parties
are free not only from the imputation of injustice, but
from all blame, especially where either of them is liti
gating a matter not on his own, but on another's account;
as for instance where a guardian is acting for his wrard,
he would not be authorized in abandoning even a doubted
right. Aristotle says that in matters of disputed right
neither side can be charged with injustice; conformably
to which opinion Quintilian observes that an upright
* Thus letters of marque and reprisal, by which individuals are en
abled to redress their own wrongs, must issue from the sovereign
power, otherwise the hostilities of such individuals would be unlaw
ful. So that here the ACTION would be unlawful, that is unjust, un
less performed by an AGENT, who had a commission from public
authority.
THE RIGHTS OF WAR AND PEACE 279
pleader may be engaged on either side of the question.
Aristotle further observes that passing a just judgment
is an ambiguous term, signifying that a judge deter
mines either according to the strict letter of the law, or
according to the dictates of his own conscience. And,
in another place, he has said that giving a wrong judg
ment through ignorance is no act of injustice.
But in matters of war and peace, where such weighty
and varied interests on all sides are concerned, it would
be difficult to obtain a judgment purely impartial, and
abstracted from all personal motives, unless there be the
most clear and undeniable evidence on the points in
question.
If we denominate a thing to be just, from its effect
in conferring certain rights, in this sense it is plain that
in war there may be justice on both sides. In the same
manner, a sentence not strictly legal, or a possession
not perfectly just may nevertheless confer certain rights.
CHAPTER XXIV.
PRECAUTIONS AGAINST RASHLY ENGAGING IN WAR, EVEN
UPON JUST GROUNDS.
Relaxation of right in order to avoid war — particularly penalties —
Self-preservation motive for forbearing hostilities — Prudential rules
in the choice of advantages — Peace preferable to the extermination
of hostile powers — Forbearance prudent in inferior powers — War
not to be undertaken, but from necessity.
I. Although it seems not to fall within the immediate
province of a treatise, entitled the RIGHTS OF WAR, to
enter into an investigation of other moral duties, which
the relations of war and peace prescribe, yet it may not
be improper slightly to touch upon certain errors, which
it is necessary to obviate, in order to prevent any one
from supposing, that, after establishing the right of war,
he is authorized, INSTANTLY or at ALL TIMES, to carry his
principles into action, and to reduce his theory to practice.
So far from this, it frequently happens that it is an act
of greater piety and rectitude to yield a right than to
enforce it.
It was before shewn, in its proper place how honour
able it is to be regardless of our own lives, where we
can preserve the lives, and promote the lasting welfare
of others. A duty that should operate with greater force
upon Christians, who have before their eyes continually
the example of him, who died to save us, while we were
enemies and ungodly. An example which calls upon us,
in the most affecting manner, not to insist upon the
rigorous prosecution of our justest rights, where it can
not be done but by the calamities, which war occasions.
If arguments and motives like these wanted authorities,
abundance of authorities might be adduced for their support.
II. Many reasons might be brought to dissuade us from
urging the full infliction of a punishment. There is an
obvious instance in the conduct of fathers, who connive
at many faults in their children. But whoever, is author
ized to punish another, assumes the character of a sov
ereign ruler, that is, of a father; in allusion to which
St. Augustin, addressing Count Marcellinus, says, (( O
Christian Judge, fulfil the office of a pious father. })
(280)
THE RIGHTS OF WAR AND PEACE 281
Sometimes indeed men are so circumstanced, that to
relinquish a right becomes not only a laudable act, but
a debt of respect to that law, which commands us to love
our enemies: a law to be respected and obeyed not only
for its intrinsic value, but as being a precept of the gos
pel. By the same law, and for the same reasons, we are
commanded to pray for and to promote the welfare and
safety of Christian Princes and Kings, because their wel
fare and safety are so essential to the order, peace, and
happiness of society.
III. With respect to the pardon of offences committed
against ourselves, little need be said, as it is known to
be a leading clause in the code of a Christian's duty, to
which he readily and freely submits, knowing that God
for Christ's sake has forgiven him. Thus revealed law
adds a sanction to what was known by heathens to be an
amiable precept. Cicero has drawn a fine character of
Caesar, in which he commends the excellence of his mem
ory that could recollect every thing but injuries. We
find many noble examples of this excellent virtue in the
writings of Moses and in various other parts of scrip
ture. These, and these motives ALONE, when they can
safely be complied with are sufficient to keep the sword
within its scabbard. For the debt of love and forbear
ance to our enemies is an obligation, which it is honour
able to discharge.
IV. It is often a duty, which we owe to our country
and ourselves, to forbear having recourse to arms. After
the college of heralds had pronounced a war to be just
we are informed by Plutarch in the life of Numa, that
the Senate further deliberated, whether it was expedient
to undertake it. According to our Saviour's beautiful
and instructive parable, a king, when he is obliged to go
to war with another king, should first sit down, an ex
pression implying an act of deliberation, and consider
within himself, whether, with ten thousand men he is
able to encounter one who is coming against him with
twenty times that number: and if he finds himself un
equal to the contest, before the enemy has entered his
territories he will send an embassy to him offering terms
of peace.
V. In all cases of deliberation, not only the ultimate
but the intermediate objects leading to the principal
ends are to be considered. The final object is always
some good, or at least the evasion of some evil, which
282 HUGO GROTIUS
amounts to the same. The means are never to be con
sidered by THEMSELVES, but only as they have a tendency
to the proposed end. Wherefore in all cases of deliber
ation, the proportion, which the means and the end bear
to each other, is to be duly weighed, by comparing them
together: a mode of comparison, in which there are
three rules necessary to be observed.
The first thing, in a moral point of view, to be con
sidered is, what tendency the desired object has to
produce good or evil ; and, if the former has the prepon-
derancy, we are then at liberty to chuse it. — In the second
place, if it appears difficult to decide, whether the good
or the evil predominates, we may chuse the object, if, in
the choice and use of our means, we can give a turn to
affairs, that may throw the preponderance into the scale
of advantage — or lastly if the good and the evil bear no
proportion to each other, nor the means, AT THE FIRST
VIEW, appear adequate to the end, if, in pursuing an
object, the tendency to good, compared with the tendency
to evil be greater than the evil itself when compared
with the good; or if the good, in comparison of the evil,
be greater than the tendency to evil, in comparison of
the tendency to good,* we may decide in favour of it.
* The three rules above laid down by our author may be illustrated
by the three following propositions. —
In the first place, it cannot be denied, that war, in the ABSTRACT, is
an evil, but then it is necessary to consider, whether it is not an evil
that must, in many cases, be submitted to in order to avoid still greater
calamities.
Secondly, in the prosecution of a war, where the advantages, or evils
are doubtful, it is necessary to endeavour after the attainment of new
confederacies or alliances, that may compensate for the losses sustained,
or may open out new channels of trade and commerce, which may
supply the place of those that have been closed by the immediate war.
As an illustration of the third point, we may adduce the conduct of
King William, after the British Cabinet that met at Tunbridge Wells,
August 28, 1698, represented to him how inadequate the spirit of the
nation was to enter into a new war, and to bear additional burdens,
concluding, <(this is the truth of the fact upon which your Majesty will
determine what resolution ought to be taken. » His Majesty did deter
mine upon war, as the least of all the evils which faced his people, not
withstanding the APPARENT inadequacy of his means. And ((in that
great war, says Mr, Burke, carried on against Louis the XIV, for near
eighteen years, government spared no pains to satisfy the nation, that
though they were to be animated by a desire of glory, glory was not
their ultimate object: but that every thing dear to them, in religion, in
law, in liberty, every thing, which as freemen, as Englishmen, and as
citizens of the great commonwealth of Christendom, they had at heart,
was then at stake. »— Lett, on Regie Peace, p. 90.
THE RIGHTS OF WAR AND PEACE 283
Cicero has treated these abstruse points in a more pop
ular and pleasing manner than abstract reasoning would
allow. Applying all the beauties of eloquence to eluci
date moral truth, he says, ((it is the height of folly and
presumption UNNECESSARILY to expose ourselves to dan
gers. In encountering calamities we must imitate the
conduct of physicians who use gentle remedies with weakly
constitutions. But in constitutions of a stronger cast, es
pecially, in virulent disorders, they must have recourse
to more powerful, though more dangerous expedients.
In the same manner, a skilful pilot would not attempt to
face the wind directly, but would tack about in order to
avoid its fury. w
VI. An example of evils, that ought by all possible
means to be avoided, is furnished by the consultations
among the states of Gaul, who, according to the account
of Tacitus, deliberated, whether they should make choice
of liberty or peace. By liberty is here meant civil liberty,
that is, the right of governing themselves, and remaining
independent states; and by peace is meant such a peace
as would prevent the whole people from being extermi
nated, a calamity like that which befel the Jews, when
their city was besieged by Titus.
In such cases reason itself dictates the choice of peace,
as the only means of preserving life, which is the imme
diate gift of God, and the foundation of every blessing.
So that the Almighty, as we read in his sacred volume,
deems it a kindness, when instead of destroying a peo
ple, he permits them to be reduced to slavery. There
fore he admonishes the Hebrews, by the mouth of his
prophet, to surrender to the Babylonians, rather than to
die by pestilence and famine.
What has been said of submitting to disadvantages,
and some calamities for the preservation of life or lib
erty, may be applied to every object of dear value. As
Aristides says, it is a moral duty in a storm, to save the
ship by casting overboard the goods, but not the crew.
VII. In exacting punishment it is necessary to use the
precaution of avoiding hostilities with a power of equal
strength. For to avenge a wrong, or to assert a right
by force of arms requires a superiority of strength. So
that not only prudence, but a regard for their subjects
will at all times deter rulers from involving their people
in the calamities of war. A principle of justice too, the
sole directress of human affairs, binding sovereigns and
284 HUGO GROTIUS
subjects to each other by their mutual interests, will
teach this lesson of precaution. For reparation must be
looked for at the hands of those, who bring on the
calamities of wanton and unnecessary war. Livy calls
that a just, which is a necessary war, and it is a pious
cause, when no hope is left, but in recourse to arms.
VIII. It is but now and then a cause of such im
perious necessity occurs, as to demand the decision of
the sword, and that is, when, as Florus says, the de
sertion of a right will be followed by calamities far more
cruel, than the fiercest wars. Seneca says, <(that it is
right to meet danger, when equal harm would result
from acquiescing in an injury, w and in this, he is sup
ported by Tacitus, who calls <( war a happy exchange for
a miserable, and insecure peace, }) and the same animated
writer in another place observes, that <( an oppressed
people may recover their liberty by daring enterprize,
and, if defeated they cannot be reduced to greater sub
jection than before ; }> a sentiment, with which Livy ac
cords, in naming <( peace, when coupled with servitude,
a far more grievous calamity, than all the horrors of
war. }) But it is not so, as Cicero says, where defeat will
be attended with proscription, and victory with bondage,
IX. Another necessary precaution relates to the TIME,
when it is proper to undertake a war, which depends
upon a due calculation, whether there are resources and
strength sufficient to support our just pretensions. This
is conformable to what was said by Augustus, that no
war should be undertaken, but where the hopes of ad
vantage could be shewn to overbalance the apprehen
sions of ruin. Scipio Africanus, and Lucius Aemilius
Paulus used to speak in terms not inapplicable to this
subject, for they said ((it was never right to try the
event of battle, but under extreme necessity, or favour
able circumstances. ®
The above precautions are of great use, where we hope
by the dread and fame of our preparations to accomplish
our object with little or no danger.
CHAPTER XXV.
THE CAUSES OF UNDERTAKING WAR FOR OTHERS.
Sovereigns may engage in war to support the rights of their subjects —
Whether an innocent subject can be delivered up to an enemy to avoid
danger — Wars justly undertaken in support of confederates upon
equal, or unequal terms — For friends — For any men — Omission of
this duty not blamable, from motives of self-preservation — Whether
war may be justly undertaken in defence of another's subjects, ex
plained by distinctions.
I. IN SPEAKING of belligerent powers, it was shewn that
the law of nature authorises the assertion not only of our
own rights, but of those also belonging to others. The
causes therefore, which justify the principals engaged in
war, will justify those also, who afford assistance to oth
ers. But whether any one presides over an household,
or a state, the first and most necessary care is the sup
port of his dependents or subjects. For the household
forms but one body with the master, and the people with
the sovereign. So the people of Israel under the com
mand of Joshua took up arms in support of the Gibeon-
ites, whom they had subdued. Our forefathers, said
Cicero to the Romans, often engaged in war to support
the rights of merchants, whose vessels had been plun
dered. The same Romans who would refuse to take arms
for a people who were only allies, did not hesitate to
assert by force of arms the injured rights of the same,
when they became their subjects.
II. Yet the cause of 'any subject, although it may be a
just cause, does not always bind sovereigns or rulers to
take arms: but only when it can be done without incon
venience to all, or the greater part of their subjects.
For the interests of the whole community, rather than
those of particular parts, are the principal objects of a
sovereign's care; and the greater any part is, the nearer
its claims and pretensions approximate to those of the
whole.
III. Some have maintained the position, that if an enemy
requires the surrender of a citizen, however innocent,
the demand must unquestionably be complied with, if
the state is too feeble to resist it. This opinion is strongly
(285)
286 HUGO GROTIUS
controverted by Vasquez, but if we attend to his mean
ing more than his words, we shall find it to be the drift
of his argument, that such a citizen ought not to be
rashly abandoned, while there remains any possible hope
of protecting him. For as a case in point, he alleges the con
duct of the Italian Infantry, who, upon receiving assurances
of protection from Caesar, deserted Pompey, even before
he was reduced to absolute despair: a conduct which he
deservedly reprobates in the strongest terms.
But whether an innocent citizen may be given up into
the hands of an enemy to avoid imminent destruction,
which would otherwise fall upon the state, is a point that
HAS BEEN formerly, and is still disputed by the learned,
according to the beautiful fable, which Domosthenes told
of the wolves, who demanded of the sheep the surrender
of the dogs, as the only terms of peace. The lawfulness of
this is denied not only by Vasquez, but by one, whose
opinions that writer condemns, as bearing a near ap
proach to perfidy. Sotus holds it as an established maxim,
that such a citizen is bound to deliver himself up: this
Vasquez denies, because the nature of civil society, which
every one has entered into for his own advantage, re
quires no such thing.
No conclusion can be drawn from hence, except that
a citizen is not bound to this by any RIGHT STRICTLY so
CALLED, while at the same time the law of charity will
not suffer him to act otherwise. For there are many
duties not properly included in the idea of strict justice.
These are regarded as acts of good will, the performance
of which is not only crowned with praise, but the omis
sion of them cannot escape censure.
Such is the complexion of the following maxim, that
every one should prefer the lives of an innumerable and
innocent multitude to his own personal and private wel
fare. Cicero, in defending Publius Sextius, says, <( If I
were taking a voyage with my friends, and happening to
meet with a fleet of pirates, they threatened to sink our
little bark, unless the crew surrendered me as the victim
to appease their fury, I would sooner throw myself into
the deep, than suffer my companions out of their affec
tion to me to encounter sure death, or even imminent
danger.
But after establishing this point, there remains a doubt,
whether any one can be COMPELLED to do what he is
BOUND to do. Sotus denies this, and in support of his
THE RIGHTS OF WAR AND PEACE 287
argument quotes the case of a rich man, who, though
bound from motives of charity to supply the wants of
the needy, cannot be compelled to do so. But the trans
actions of equals with each other, must be regulated
upon principles very different from those that regulate
the mutual relations of sovereigns and subjects. For an
equal cannot compel an equal to the performance of any
thing, but what he is strictly bound by law to perform.
But a superior may compel an inferior to the performance
of OTHER duties besides those of PERFECT OBLIGATIONS;
for that is a right peculiarly and essentially belonging to
the nature of superiority. Therefore certain legislative
provisions may be made, enacting the performance of
such duties, as seem to partake of the nature of benevo
lence. Phocion, as it is mentioned in Plutarch's lives,
said that the persons, whom Alexander demanded, had
reduced the commonwealth to such distress, that if he
demanded even his dearest friend Nicocles, he should
vote for delivering him up.
IV. Next to subjects, and even upon an equal footing
with them, as to claims of protection, are allies, a name
including, in its consequences and effects, both those,
who have formed a subordinate connection with another
power, and those who have entered into engagements of
mutual assistance. Yet no such compacts can bind either
of the parties to the support or prosecution of unjust
wars. And this is the reason, why the Lacedaemonians,
before they went to war with the Athenians, left all their
allies at liberty to decide for themselves upon the justice
of the quarrel. To which an additional observation may
be made, that no ally is bound to assist in the prosecu
tion of schemes, which afford no possible prospect of a
happy termination. For this would be defeating the very
end of alliances, which are contracted from motives of
public advantage, and not for a participation in ruin.
But any power is obliged to defend an ally even against
those, with whom it is already connected by subsisting
treaties, provided those treaties contain no express con
dition prohibiting such defence. Thus the Athenians
might have defended the Corcyraeans, IN A JUST CAUSE,
even against the Corinthians, their more ancient allies.
V. A third case is that, where assistance has not been
expressly promised to a friendly power, and yet is due
on the score of friendship, if it can be given without
inconvenience.
288 HUGO GROTiUS
Upon this principle Abraham took arms in defence of
his kinsman Lot: and the Romans charged the Antiates
to commit no acts of piracy upon the Greeks, as being
a people of the same kindred with the Italians. It was
no unusual thing with the Romans to begin, or at least
to threaten to begin wars not only in support of allies,
to whom they were bound by treaty, but in support of
any friendly powers.
VI. The last and most extensive motive is the common
tie of one COMMON NATURE, which alone is sufficient to
oblige men to assist each other.
VII. It is a question, whether one man is bound to
protect another, or one people another people from injury
and aggression. Plato thinks that the individual or state
not defending another from intended violence is deserv
ing of punishment. A case for which provision was made
by the laws of the Egyptians.
But in the first place it is certain that no one is bound
to give assistance or protection, when it will be attended
with evident danger. For a man's own life and property,
and a state's own existence and preservation are either
to the individual, or the state, objects of greater value
and prior consideration than the welfare and security of
other individuals or states.
Nor will states or individuals be bound to risk their
own safety, even when the aggrieved or oppressed party
cannot be relieved but by the destruction of the invader
or oppressor. For under some circumstances it is impos
sible successfully to oppose cruelty and oppression, the
punishment of which must be left to the eternal judge
of mankind.
VIII. Though it is a rule established by the laws of
•nature and of social order, and a rule confirmed by all
the records of history, that every sovereign is supreme
judge in his own kingdom and over his own subjects, in
whose disputes no foreign power can justly interfere.
Yet where a Busiris, a Phalaris or a Thracian Diomede
provoke their people to despair and resistance by unheard
of cruelties, having themselves abandoned all the laws of
nature, they lose the rights of independent sovereigns,
and can no longer claim the privilege of the law of
nations. Thus Constantine took up arms against Max-
entius and Licinius, and other Roman emperors either
took, or threatened to take them against the Persians, if
they did not desist from persecuting the Christians.
THE RIGHTS OF WAR AND PEACE 289
Admitting that it would be fraught with the greatest
dangers if subjects were allowed to redress grievances
by force of arms, it does not necessarily follow that
other powers are prohibited from giving them assistance
when labouring under grievous oppressions. For when
ever the impediment to any action is of a personal nature,
and not inherent in the action itself, one person may
perform for another, what he cannot do for himself,
provided it is an action by which some kind service may
be rendered. Thus a guardian or any other friend may
undertake an action for a ward, which he is incapacitated
from doing for himself.
The impediment, which prohibits a SUBJECT from mak
ing resistance, does not depend upon the nature of the
OCCASION, which would operate equally upon the feelings
of men, whether they were subjects or not, but upon the
character of the persons, who cannot transfer their
natural allegiance from their own sovereign to another.
But this principle does not bind those, who are not the
liege-subjects of that sovereign or power. Their opposi
tion to him or the state may sometimes be connected
with the defence of the oppressed, and can never be
construed into an act of treason. But pretexts of that
kind cannot always be allowed, they may often be used
as the cover of ambitious designs. But right does not
necessarily lose its nature from being in the hands of
wicked men. The sea still continues a channel of lawful
intercourse, though sometimes navigated by pirates, and
swords are still instruments of defence, though sometimes
wielded by robbers or assassins.
BOOK III.
CHAPTER I.
WHAT is LAWFUL IN WAR.
What is lawful in war — General Rules derived from the law of nature —
Stratagems and lies — Arrangement of the following parts — First
rule, all things necessary to the end lawful — Right resulting not only
from the origin of a war, but from causes growing out of the same
— Certain consequences justifiable, though not originally lawful —
What measures are lawful against those who furnish an enemy with
supplies — Stratagems — Negative — Positive — Sometimes allowable
to use words in a sense different from the general acceptation — A lie
according to the true notion of it injurious to the rights of others —
Falsehood allowable in order to deceive children or madmen — Any
one addressing another without intentions to deceive, not answerable
for the misconceptions of a third person — A person not answerable
for the wilful mistakes of those to whom he speaks — The fictitious
threats of a person in authority — Fiction allowable in order to save
the lives of the innocent, or to promote other equally important pur
poses — Deception lawful against an enemy, but not including prom
ises, or oaths — To forbear using this privilege an act of generosity
and Christian simplicity — Not allowable to urge others to what is
unlawful for them, but not for us to do — Allowable to use the serv
ices of deserters.
I. HAVING, in the preceding books, considered by what
persons, and for what causes, war may be justly declared
and undertaken, the subject necessarily leads to an in
quiry into the circumstances, under which war may be
undertaken, into the extent, to which it may be carried,
and into the manner, in which its rights may be en
forced. Now all these matters may be viewed in the
light of privileges resulting simply from the law of nature
and of nations, or as the effects of some prior treaty or
promise. But the actions, which are authorised by the
law of nature, are those that are first entitled to atten
tion.
II. In the first place, as it has occasionally been ob
served, the means employed in the pursuit of any object
must, in a great degree, derive the complexion of their
moral character from the nature of the end to which
(290)
THE RIGHTS OF WAR AND PEACE 291
they lead. It is evident therefore that we may justly
avail ourselves of those means, provided they be lawful,
which are necessary to the attainment of any right.
RIGHT in this place means what is strictly so called, sig
nifying the moral power of action, which any one as a
member of society possesses. On which account, a per
son, if he has no other means of saving his life, is justi
fied in using any forcible means of repelling an attack,
though he who makes it, as for instance, a soldier in
battle, in doing so, is guilty of no crime. For this is a
right resulting not properly from the crime of another,
but from the privilege of self-defence, which nature
grants to every one. Besides, if any one has SURE and
UNDOUBTED grounds to apprehend imminent danger from
any thing belonging to another, he may seize it without
any regard to the guilt or innocence of that owner. Yet
he does not by that seizure become the proprietor of it.
For that is not necessary to the end he has in view.
He may DETAIN it as a precautionary measure, till he
can obtain satisfactory assurance of security.
Upon the same principle any one has a natural right
to seize what belongs to him, and is unlawfully detained
by another: or, if that is impracticable, he may seize
something of equal value, which is nearly the same as
recovering a debt. Recoveries of this kind establish a
property in the things so reclaimed; which is the only
method of restoring the equality and repairing the
breaches of violated justice. So too when punishment
is lawful and just, all the means absolutely necessary to
enforce its execution are also lawful and just, and every
act that forms a part of the punishment, such as destroy
ing an enemy's property and country by fire or any other
way, falls within the limits of justice proportionable to
the offence.
III. In the second place, it is generally known that it
is not the ORIGIN only of a just war which is to be
viewed as the principal source of many of our rights,
but there may be causes growing out of that war wThich
may give birth to additional rights. As in proceedings
at law, the sentence of the court may give to the suc
cessful litigant other rights besides those belonging to
the original matter of dispute. So those who join our
enemies, either as allies or subjects, give us a right of
defending ourselves against THEM also. So too a nation
engaging in an unjust war, the injustice of which she
292 HUGO GROTIUS
knows and ought to know, becomes liable to make good
all the expences and losses incurred, because she has
been guilty of occasioning them. In the same manner
those powers, who become auxiliaries in wars undertaken
without any reasonable grounds, contract a degree of
guilt and render themselves liable to punishment in pro
portion to the injustice of their measures. Plato approves
of war conducted so far, as to compel the aggressor to
indemnify the injured and the innocent.
IV. In the third place, an individual or belligerent
power may, in the prosecution of a lawful object, do
many things, which were not in the contemplation of
the original design, and which in THEMSELVES it would
not be lawful to do. Thus in order to obtain what
belongs to us, when it is impossible to recover the spe
cific thing, we may take more than our due, under con
dition of repaying whatever is above the real value. For
the same reason it is lawful to attack a ship manned by
pirates, or a house occupied by robbers, although in that
ship, or that house there may be many innocent persons,
whose lives are endangered by such attack.
But we have had frequent occasion to remark, that
what is conformable to right taken in its strictest sense
is not always lawful in a moral point of view. For there
are many instances, in which the law of charity will not
allow us to insist upon our right with the utmost rigour.
A reason for which it will be necessary to guard against
things, which fall not within the original purpose of an
action, and the happening of which might be foreseen:
unless indeed the action has a tendency to produce
advantages, that will far outweigh the consequences of
any accidental calamity, and the apprehensions of evil
are by no means to be put in competition with the sure
hopes of a successful issue. But to determine in such
cases requires no ordinary penetration and discretion.
But wherever there is any doubt, it is always the safer
way to decide in favour of another's interest, than to
follow the bent of our own inclination. <( Suffer t.he tares
to grow, says our divine teacher, least in rooting up the
tares you root up the wheat also."
The general destruction, which the Almighty, in right
of his supreme Majesty, has sometimes decreed and
executed, is not a rule, which we can presume to follow.
He has not invested men, in the exercise of power,
with those transcendent sovereign rights. Yet he himself,
THE RIGHTS OF WAR AND PEACE 293
notwithstanding the unchangeable nature of his sovereign
will, was inclined to spare the most wicked cities, if ten
righteous persons could be found therein. Examples
like these may furnish us with rules to decide, how far
the rights of war against an enemy may be exercised or
relaxed.
V. It frequently occurs as a matter of inquiry, how far
we are authorised to act against those, who are neither
enemies, nor wish to be thought so, but who supply
our enemies with certain articles. For we know that it
is a point, which on former and recent occasions has
been contested with the greatest animosity; some wishing
to enforce with all imaginary rigour the rights of war,
and others standing up for the freedom of commerce.
In the first place, a distinction must be made between
the commodities themselves. For there are some, such
as arms for instance, which are only of use in war;
there are others again, which are of no use in war, but
only administer to luxury; but there are some articles,
such as money, provisions, ships and naval stores,
which are of use at all times both in peace and war.
As to conveying articles of the first kind, it is evident
that any one must be ranked as an enemy, who supplies
an enemy with the means of prosecuting hostilities.
Against the conveyance of commodities of the second
kind, no just complaint can be made. — And as to articles
of the third class, from their being of a doubtful kind,
a distinction must be made between the times of war
and peace. For if a power can not defend itself, but by
intercepting the supplies sent to an enemy, necessity
will justify such a step, but upon condition of making
restoration, unless there be some additional reasons to
the contrary. But if the conveyance of goods to an
enemy tends to obstruct any belligerent power in the
prosecution of a lawful right, and the person so convey
ing them possesses the means of knowing it; if that
power, for instance, is besieging a town, or blockading a
port, in expectation of a speedy surrender and a peace,
the person, who furnishes the enemy with supplies, and
the means of prolonged resistance, will be guilty of an
aggression and injury towards that power. He will incur
the same guilt, as a person would do by assisting a
debtor to escape from prison, and thereby to defraud
his creditor. His goods may be taken by way of indem
nity, and in discharge of the debt. If the person has
294 HUGO GROTIUS
not yet committed the injury, but only intended to do
so, the aggrieved power will have a right to detain his
goods, in order to compel him to give future security,
either by putting into his hands hostages, or pledges;
or indeed in any other way. But if there are evident
proofs of injustice in an enemy's conduct the person who
supports him in such a case, by furnishing him with
succours, will be guilty not barely of a civil injury, but
his giving assistance will amount to a crime as enormous,
as it would be to rescue a criminal in the very face of
the judge. And on that account the injured power may
proceed against him as a criminal, and punish him by a
confiscation of his goods.
These are the reasons, which induce belligerent powers
to isstie manifestoes, as an appeal to other states, upon
the justice of their cause, and their probable hopes of
ultimate success. This question has been introduced
under the article, which refers to the law of nature, as
history supplies us with no precedent to deduce its es
tablishment from the voluntary law of nations.
We are informed by Polybius, in his first book, that
the Carthaginians seized some of the Romans, who were
carrying supplies to their enemies, though they after
wards gave them up, upon the demand of the Romans.
Plutarch says that when Demetrius had invested Attica,
and taken the neighbouring towns of Eleusis and Rham-
nus, he ordered the master and pilot of a ship, attempt
ing to convey provisions into Athens, to be hanged, as
he designed to reduce that city by famine: this act of
rigour deterred others from doing the same, and by that
means he made himself master of the city.
VI. Wars, for the attainment of their objects, it cannot
be denied, must employ force and terror as their most
proper agents. But a doubt is sometimes entertained,
whether stratagem may be lawfully used in war. The
general sense of mankind seems to have approved of
such a mode of warfare. For Homer commends his hero,
Ulysses, no less for his ability in military stratagem, than
for his wisdom. Xenophon, who was a philosopher as
well as a soldier and historian, has said, that nothing
can be more useful in war than a well-timed stratagem,
with whom Brasidas, in Thucydides agrees, declaring it
to be the method from which many great generals have
derived the most brilliant reputation. And in Plutarch,
Agesilaus maintains, that deceiving an enemy is both
THE RIGHTS OF WAR AND PEACE 295
just and lawful. The authority of Polybius may be
added to those already named; for he thinks, that it
shews greater talent in a general to avail himself of
some favourable opportunity to employ a stratagem, than
to gain an open battle. This opinion of poets, historians,
and philosophers is supported by that of Theologians.
For Augustin has said that, in the prosecution of a just
war, the justice of the cause is no way affected by the
attainment of the end, whether the object be accom
plished by stratagem or open force, and Chrysostom, in
his beautiful little treatise on the priestly office, observes,
that the highest praises arc bestowed on those generals,
who have practised successful stratagems. Yet there is
one circumstance, upon which the decision of this ques
tion turns more than upon any opinion even of the high
est authority, and that is, whether stratagem ought to be
ranked as one of those evils, which are prohibited under
the maxim OF NOT DOING EVIL, THAT GOOD MAY ENSUE, or
to be reckoned as one of those actions, which, though
evil IN THEMSELVES, may be so modified by particular oc
casions, as to lose their criminality in consideration of
the good, to which they lead.
VII. There is one kind of stratagem, it is proper to
remark, of a negative, and another of a positive kind.
The word stratagem, upon the authority of Labeo, taken
in a negative sense, includes such actions, as have nothing
criminal in them, though calculated to deceive, where
any one, for instance, uses a degree of dissimulation or
concealment, in order to defend his own property or that
of others.* So that undoubtedly there is something of
harshness in the opinion of Cicero, who says there is
no scene of life, that will allow either simulation, or dis
simulation to be practised. For as you are not bound
to disclose to others all that you either know or intend;
it follows that, on certain occasions, some acts of dissim
ulation, that is, of concealment may be lawful. This is
a talent, which Cicero, in many parts of his writings,
acknowledges that it is absolutely necessary for states
men to possess. The history of Jeremiah, in the xxxviiith
chapter of his prophecy, furnishes a remarkable instance
of this kind. For when that prophet was interrogated
*Thus when a ship makes an appearance of mounting more guns
than she really carries, in order to deter an enemy from attacking
her, this may be considered as one of those negative stratagems, or
stratagems of dissimulation, to which our author alludes.
296 HUGO GROTIUS
by the king, respecting the event of the siege, he pru
dently, in compliance with the king's orders, concealed
the real matter from the nobles, assigning a different,
though not a false reason for the conference, which he
had had. In the same manner, Abraham called Sarah,
his sister, an appellation used familiarly at that time to
denote a near relation by blood, concealing the circum
stance of her being his wife.
VIII. A stratagem of a positive kind, when practised
in actions, is called a feint, and when used in conversa
tion it receives the name of a lie or falsehood. A dis
tinction is made by some, between these two kinds of
stratagems, who say, that words are signs of our ideas,
but actions are not so. But there is more of truth in the
opposite opinion, that words of themselves unaccompanied
by the intention of the speaker, signify nothing more than
the inarticulate cries would do of any one labouring under
grief, or any other passion: which sounds come under
the denomination of actions, rather than of speech. But
should it be said that being able to convey to others
the conceptions of his mind, by words adapted to the pur
pose, is a peculiar gift of nature, by which man is dis
tinguished from other parts of the animated creation, the
truth of this cannot be denied.
To which we may add that such communication may
be made not only by words, but by signs or gestures,
like those used to the dumb; it makes no difference,
whether those signs or gestures have any natural connec
tion with the thing they are intended to signify, or
whether such a connection is only assigned to them by
custom. Equivalent to such signs or gestures is hand
writing, which may be considered, as a dumb language,
deriving its force not merely from the words used, and
the particular form of the letters, but from the real in
tention of the writer, to be gathered from thence: — to
be gathered either from the resemblance between the
characters and the intentions, as in the Egyptian
hieroglyphics, or from pure fancy, as among the Chi
nese.
Here likewise another distinction is necessary to be
applied in the same manner, as was done before, in order
to remove all ambiguity in using the term of THE LAW
OF NATIONS. For it was there said, that the laws estab
lished by independent and separate states, whether or no
those laws implied any mutual obligations, were denomi-
THE RIGHTS OF WAR AND PEACE 297
nated the LAW OF NATIONS.* So that words, gestures,
and signs, made use of to convey a meaning, imply an
obligation, in all the persons concerned, to receive and
employ them in their common acceptation. But the em
ployment of OTHER MEANS, coming under NONE OF THOSE
DESCRIPTIONS, cannot be construed into a violation of any
social contract, although some may be deceived thereby.
It is the REAL NATURE of the actions that is here spoken
of, and not the ACCIDENTAL circumstances attending them :
such actions for instance, as occasion no mischief; or if
they do so, there is no guilt, where there is no treacher
ous design.
We have an instance of the former kind in the conduct
of our Saviour, who, on the way to Emmaus, pretended
to the disciples, that he was going further; here was a
harmless stratagem, unless we interpret the words, as
expressive of his intention to have gone further, if he
had not been prevented by their efforts and entreaties
to detain him. And in another part of the sacred history
it is said, that he intended to have passed by the Apostles
on the sea, that is, he intended to have done it, had he
not been so earnestly importuned by them to go into the
ship. There is another instance too in the conduct of
Paul, who circumcised Timothy, though he knew the
Jews would conclude from thence, that the ordinance of
circumcision, which in reality had been abolished, was
still binding upon the descendants of Israel, and that
Paul and Timothy were of the same opinion. Whereas
Paul had no such intention, but only hoped, by that
means, to open for himself and Timothy a way to more
familiar intercourse with the Jews. Neither could an
ordinance of that kind, when the divine obligation was
repealed, any longer be deemed of such importance, nor
could the evil of a temporary error, resulting from thence,
and afterwards to be corrected, be regarded as equivalent
to the opportunity, which Paul thought to gain, of mak
ing it conducive to the introduction of Christian truth.
* Besides the NECESSARY law of nations, which is EQUALLY, and at ALL
TIMES binding upon ALL states, there is a POSITIVE law of nations,
consisting of THE VOLUNTARY, THE CONVENTIONAL and THE CUSTOMARY
law. All of which « proceed from the will of nations, — the VOLUN
TARY from their presumed consent, the CONVENTIONAL from an express
consent, and the CUSTOMARY from tacit consent: and as there can be
no other mode of deducing any law from the will of nations, there
are only these three kinds of POSITIVE LAW OF NATIONS. w — Vattel,
Prelim. Sect 27.
298 HUGO GROTIUS
The Greek Fathers have given the name of ECONOMY,
or MANAGEMENT to stratagems of this kind. On this sub
ject there is an admirable sentiment in Clement of Alex
andria, who, in speaking of a good man, says that (( he
will do many things for the benefit of his neighbour
alone, which he would not otherwise have undertaken."
One of these stratagems was practised by the Romans,
who, during the time that they were besieged in the
Capitol, threw some loaves of bread into the enemy's
camp, that it might not be supposed they were pressed
by famine. The feigned flight, which Joshua ordered
his people to make, to assist him in his designs upon
Ai, affords an instance of a stratagem of the second
kind; the ensuing mischiefs of which may be considered,
as some of the effects of lawful war. The ORIGINAL
DESIGN of that pretended flight does not at all affect the
question. The enemy took it for a proof of fear; and
he was at liberty to do so, without debarring the other
of his right to march this way, or that, with an acceler
ated or retarded motion, with a shew of courage, or an
appearance of fear, as he might judge it most expe
dient.
History furnishes us with innumerable examples of
deceptions practised with success upon an enemy, by
assuming his arms, ensigns, colours, or uniforms; all
which may be justified upon the same principle. For all
these are actions, which any one may avail himself of
at his pleasure, by departing from the usual course of
his military system. For such points of discipline and
system depend upon the will and fancy of the military
commanders in each state, rather than upon any invari
able custom, equally binding upon all nations.
IX. Those signs, by which the daily intercourse of life
is maintained, form a subject of more weighty discussion,
with which the consideration of lies or falsehood is nec
essarily interwoven.
All stratagems of this kind are so direct a violation of
all moral principle, both in their nature and conse
quences, that almost every page of the revealed will of
God declares their condemnation. Solomon describes a
righteous, that is, a good man, as one, who holds every
false word in detestation, deprecating the least appear
ance of deception: and the Apostle's injunction accords
with these sentiments, instructing his disciples not to lie
to one another.
THE RIGHTS OF WAR AND PEACE 299
Nor is it in the high standard of perfection alone, which
the divine records present, that such a recommendation
of fair, open, and sincere dealing is to be found. It is
the theme of praise with poets and philosophers, and the
angry hero of the Grecian poet declares, that he detests
the man, as an infernal being, who utters one thing with
his tongue, while he conceals another in his heart. But
making some allowance for poetic fiction — we find even
the grave, sober, and discerning, Stagirite describing
falsehood, as a vile, and abominable refuge, and paint
ing truth as a lovely object, that must extort the warm
est praise.
These are all great and high authorities in favour of
open dealing. Yet there are names of no less weight,
both among sacred and profane writers, whose opinions
are a vindication of stratagems, when used upon PROPER
occasions. One \vriter speaks of a case, where stratagem
may be used, even for the benefit of the person, on
whom it is practised, and adduces the instances of a
physician, who, by means of a deception, overcame the
perverseness of a patient, and wrought a salutary cure.
X. To reconcile such a variety of discordant opinions,
it may be necessary to devise some way of examining
falsehood both in its more extensive, and more confined
acceptation. Nor is speaking an untruth, UNAWARES, to
be considered in the nature of a lie, but the falsehood,
which comes within the limits here defined, is the KNOWN
and DELIBERATE UTTERANCE of any thing contrary to our
real conviction, intention, and understanding.
Words, or signs, importing the same meaning as words,
are generally taken for conceptions of the mind, yet it is
no lie for any man to utter a falsehood, which he believes
to be true ; but the propogation of a truth, which any one
believes to be false, IN HIM amounts to a lie. There must
be in the use of the words therefore an INTENTION to de
ceive, in order to constitute a falsehood in the proper and
common acceptation. Consequently, when any one single
word, or the whole tenour of a discourse, admits of more
significations than one, either by the use of some popular
phrase, some term of art, or intelligible figure of speech,
in that case if the speaker's intention correspond with any
one of those meanings, he cannot be charged with using
falsehood, although it is possible that a hearer may take
his words in a very different sense. It is true that using
such an ambiguous method of speaking on ALL OCCASIONS
3oo HUGO GROTIUS
is not to be approved of, though there are particular cir
cumstances under which it may be reconciled with honour
and justice. In communicating knowledge, for instance,
there is no harm in using a metaphor, an irony, or an
hyperbole, figures of speech, tending either to adorn or to
elucidate a subject. There are cases too, where by this
doubtful mode of expression it may be proper to avoid
an urgent and impertinent question. There is an instance
of the former kind in our Saviour's saying, that <(our
friend Lazarus sleepeth,^ where the disciples understood
him, as if he were speaking of the refreshing rest of an
ordinary sleep : and when he spoke of restoring the temple,
which he meant his own body, he knew that the Jews ap
plied what he said to the MATERIAL EDIFICE of the Temple.
In the same manner he frequently addressed the multi
tudes in parables, which they could not understand by
barely hearing, without that docility of mind, and atten
tion, which the subject required. Profane history too
furnishes us with an example of the second kind, in the
conduct of Vitellius, who, as Tacitus informs us, gave
Narcissus doubtful and ambiguous answers, in order to
avoid his urgent questions; as any explicit declaration
might have been attended with danger.
On the other hand, it may happen to be not only cen
surable, but even wicked to use such a manner of
speaking, where either the honour of God or the welfare
of mankind is concerned, or indeed any matter, which
demands explicit avowals, and open dealing. Thus in
contracts every thing necessary to their fulfillment ought
to be fully disclosed to those concerned. There is an
apposite expression of Cicero, who says, that every de
gree of deception ought to be banished from all con
tracts, and there is in the old Athenian Laws a proverb,
conformable to this, which says, there must be nothing,
but open dealing in markets.
XI. In strictness of speech such ambiguity is ex
cluded from the notion of a lie. The common notion of
a lie therefore is something spoken, written, marked, or
intimated, which cannot be understood, but in a sense
different from the real meaning of the speaker. But a
lie, in this stricter acceptation, having some thing unlaw
ful in its very nature, necessarily requires that a dis
tinction should be made between it and that latitude of
expression already explained. And if this acceptation be
properly considered, at least according to the opinion
THE RIGHTS OF WAR AND PEACE 301
prevailing in all nations, it seems, that no other explana
tion of it is necessary to be given, except that it is a
violation of the existing and permanent rights of the
person, to whom a discourse, or particular signs, are
directed. It is a violation of the rights of ANOTHER; for
it is evident, that no one can utter a falsehood with a
view to impose upon himself. The rights here spoken of
are peculiarly connected with this subject. They imply
that liberty of judgment, which men are understood, by
a kind of tacit agreement, to owe to each other in their
mutual intercourse. For this, and this alone is that mu
tual obligation, which men intended to introduce, as soon
as they began to use speech, or other signs of equal
import. For without such an obligation the invention of
those signs would have been perfectly nugatory. It is
requisite too, that at the time a discourse is made, such
a right or obligation should remain in full force.
A right may indeed have existed and afterwards have
become obsolete, owing to the rise or occurrence of
some new right : which is the case with a debt, that may
be released by acquittance, or nonperformance of a con
dition. It is farther requisite, to constitute a VIOLATION
OF THIS RIGHT, that the ensuing injury should immedi
ately affect the PERSON ADDRESSED: as in contracts, there
can be no injustice, but what affects one of the parties,
or persons concerned.
And perhaps under the head of this right, it may not
be improper to assign a place to that TRUE SPEAKING,
which Plato, following Simonides, classes with justice,
in order to form a more striking contrast with that false
hood, so often prohibited in Scripture, by the name of
false witness to, or against, our neighbour, and which
Augustin, in denning a lie, calls an intention to deceive.
Cicero also in his offices lays down truth, as the basis of
justice.
The right to a discovery of the whole truth may be re
linquished by the express consent of the persons, who are
engaged in a treaty: the one may declare his intention
not to disclose certain points, and the other may allow of
this reserve. There may be also a tacit presumption,
that there are just reasons for such reserve which may
perhaps be necessary out of regard to the rights of a
third person: rights which, in the common judgment of
all sober men, may be sufficient to counterbalance any
obligation in either of the persons engaged in the treaty
302 HUGO GROTIUS
to make a full disclosure of his views and sentiments. —
These principles, duly considered, will supply many in
ferences to reconcile any seeming contradiction in the
opinions, that have been advanced.
XII. In the first place, many things may be said to
madmen, or children, the LITERAL MEANING of which
may not be true, without incurring the guilt of wilful
falsehood. A practice which seems to be allowed by the
common sense of all mankind. Quintilian, speaking of
the age of puerility, says, it is a period of life, when
many useful truths may be taught in the dress of fiction.
• — Another reason given is, that as children and madmen
possess no perfect power of judging, impositions of that
kind can do no injury to their rights, in such respects.
XIII. Secondly, when a conversation is addressed to
any one, who is not thereby deceived, although a third
person, not immediately addressed, may misconceive the
matter, there is no wilful falsehood in the case. No
WILFUL FALSEHOOD towards the person addressed: because
he feels no greater injury from thence, than an intelli
gent hearer would do from the recital of a fable, or the
use of a metaphor, irony, or hyperbole in speech. It
cannot be said that an injury is done to the person, who
accidentally and cursorily hears a matter, and miscon
ceives it: for being no way concerned, there is no obli
gation due to him. As he misconceives a thing addressed
to ANOTHER, and not to HIMSELF, he must take upon his
own head all the consequences of the mistake. For,
properly speaking, the discourse, WITH RESPECT TO HIM, is
no discourse, but an inexpressive sound that may signify
one thing as well as another. So that there was nothing
wrong in the conduct of Cato the Censor, who made a
false promise of assistance to his confederates, nor in
that of Flaccus, who informed others that Aemilius had
taken the enemy's city by storm, although the enemy
were deceived by it. Plutarch mentions an instance of
the same kind in the life of Agesilaus. Here no com
munication was made to the enemy, and the prejudice he
sustained was an accidental thing no way unlawful in
itself, either to be wished for or procured.
XIV. In the third place, whenever it is certain that
the person, on whom a deception is practised, dis
covers that the intent of it was to do him a service ; he
will not feel it as a grievance, nor can it come under
the strict denomination of a lie or falsehood. It will be
THE RIGHTS OF WAR AND PEACE 303
no more an INJURY, than it would be a THEFT in any one,
presuming upon an owner's consent, to take something
belonging to that owner, in order to convert it to his
use in a very beneficial way. For in cases of notorious
certainty, a PRESUMPTION may be taken for express con
sent. But it is evident that no man would CONSENT to
receive an INJURY.
From hence it appears, that a person is guilty of no
treachery, who uses unfounded or fictitious motives to
console a friend in distress, as Arria did to Paetus upon
the death of his son, of which there is an account in
Pliny's Epistles, or in a general, who in a perilous situ
ation should avail himself of false intelligence, to encour
age his troops, by which perhaps a victory might be
gained.
It may be observed likewise, that the injury done to
the freedom of judgment is, in such a case, of less con
sequence, because it is but momentary, and the real fact
is soon discovered.
XV. There is a fourth case, which bears a near affin
ity to those above mentioned, and that is, when any one,
possessing preeminent authority, orders another, in a
subordinate capacity, to execute some device or stratagem,
conducive either to his individual, or to the public wel
fare. Which Plato seems to have had particularly in view,
in allowing those in authority to avail themselves of pre
texts, or stratagems. The same writer is very correct in
his notion of not making such a device a characteristic of
that authority, which belongs to the supreme being. For
all such devices, however justifiable they may be in CER
TAIN CASES, strongly betray that imperfection, which is
inseparable from all human systems.
The stratagem, which Joseph employed to obtain fur
ther discoveries without making himself known to his
brethren, is much commended by Philo, as a mark of
great policy, when, contrary to the convictions and feel
ings of his own mind, he accused them of being spies,
and afterwards charged them with theft. It was by a
stratagem of the same kind, that Solomon gave proof of
his inspired wisdom, when he used the FICTITIOUS threat
of dividing the living child in order to discover the real
mother.
XVI. The fifth case, which allows a stratagem to be
practised, is that, where it may be the ONLY means of
saving the life of an innocent person, of obtaining some
304 HUGO GROTIUS
object of equal importance, or of diverting another from
the perpetration of some horrid design. The heathen
poet has given a beautiful illustration of this in his praises
of Hypermnestra, whose conduct he calls (< a splendid strat
agem, ennobling the virgin to all posterity. })
XVII. It is evident that many writers of acknowledged
wisdom, and sober judgment, have carried the point
farther than has been done in this treatise, in allowing
the use of false representations to an enemy. In cases,
where public enemies are concerned, they maintain, that
it is lawful to deviate from those strict rules of avowing
and disclosing all our intentions, which they prescribe,
on all other occasions. Such is the opinion of Plato and
Xenophon among the Greeks, of Philo among the Jews,
and Chrysostom among Christians It may not perhaps
be amiss to cite, in this place, the message sent by the
men of Jabesh Gilead to the Ammonites, by whom they
were besieged, and also that of the prophet Elisha, and at
the same time to mention the conduct of Valerius Lae-
vinus, who boasted of having killed Pyrrhus.
The third, the fourth and fifth observations above made,
may be illustrated from what is said by Eustratus, Arch
bishop of Nice, ((An able and upright counsellor is not
obliged to disclose the whole truth: for there may be
occasions, when it may be necessary for him to recom
mend the means of deceiving an enemy, or to employ
some stratagem towards a friend, where it may turn to
his advantage. })
XVIII. What has been said of false speaking must be
understood as applied to affirmative declarations, which
can be prejudicial to no persons, but public enemies: it
can by no means be taken to include promises. For
promises confer upon the person, to whom they are made,
a peculiar right to claim their full performance. And
this is a rule, which must take place, even between pub
lic enemies; a rule to which existing hostilities are not
allowed to form an exception. It is a maxim proper to
be enforced in TACIT, as well as in EXPRESS agreements:
as when a parley or conference is demanded, there is
always an IMPLIED promise, that both sides shall attend
it with perfect safety. But these are points reserved for
the discussion of another part of this treatise.
XIX. It will be necessary to repeat an observation
made before, with respect to oaths, both of the affirma
tive and promissory kind, where it was maintained that
THE RIGHTS OF WAR AND PEACE 305
they exclude all exceptions, all mental reservations to
wards the person, to whom they are made, being regarded
not merely as a solemn transaction with that individual,
but as a stedfast appeal to God. Such an appeal to the
supreme being demands the performance of an oath, even
if it gave the individual no right to the same.
At the same time it was observed, that a sworn dec
laration is not like one of any other kind, where an
application of terms different from their usual meaning
may supply the speaker with an excuse for evading their
import. But truth requires every declaration and promise
to be made in terms, which it is supposed that every man
of integrity and clear judgment will understand, spurn
ing at the impious thought, that men may be deceived
by oaths, as children are by toys and trifles.
XX. Some nations and individuals indeed have rejected
the use of those stratagems, which even the law of na
ture allows to be employed as a means of self-defence
against an enemy. But they did so, not from any opin
ion of their unlawfulness, but from a noble loftiness of
mind, and from a confidence in their own strength. Ae-
lian has preserved a saying of Pythagoras, <( that there
are two things, in which man approaches nearest to God,
in always speaking the truth, and doing good to others. w
Aristotle, somewhere in his Ethics, calls speaking truth,
the freedom of a great soul, and Plutarch says, that false
hood is the qualification of a slave. But an adherence to
truth, in simplicity of heart, is not the only duty required
of Christians, in this respect, they are commanded to ab
stain from all vain discourse, as having for their example
him, in whose mouth there was found no guile.
XXI. With respect to the actions of men, there is an
other rule which may properly come under this head,
and that is, the unlawfulness of urging or persuading
any one to do an unlawful act. For instance, no subject
has a right to lift his hand against his sovereign, to
deliver up a town without public authority, or to des
poil his neighbour of his goods. It would be unlawful
then to encourage the subject of an enemy, as long as
he continues his subject, to do any of these acts. For
the person, who urges another to do a wicked act, makes
himself a partner in his guilt. Nor can it be received
as a just answer, that urging a subject to the perpetra
tion of such a deed is nothing more than employing the
lawful means of destroying an enemy. For though it
ao
3o6 HUGO GROTIUS
may be necessary and just to destroy him, if possible,
yet that is not the way, in which it should be done.
Augustin has well observed, that it makes no difference
whether any one should commit a crime himself, or
employ another as his instrument.
But employing the spontaneous offers of a deserter is
not contrary to the laws of war, and is a very dif
ferent action from that of seducing a subject from his
allegiance.
WAR AND PEACE
This is a frontispiece to a Latin edition of Grotius' De Jure
Belli ac Pads, published at Amsterdam in 1670. It is intended
to be symbolical of War and Peace acting under ttic direction
of Justice, these three figures forming the central group.
CHAPTER II.
IN WHAT MANNER THE LAW OF NATIONS RENDERS
THE PROPERTY OF SUBJECTS ANSWERABLE FOR
THE DEBTS OF SOVEREIGNS. THE
NATURE OF REPRISALS.
No one but an heir bound by the act of another — Property of sub
jects answerable for the debts of sovereigns, according to the law
of Nations — Capture of persons and property after satisfaction
refused by the aggressor — Reprisals — Personal safety of subjects
— Distinction made by the law of Nations in this respect.
I. THE rights accruing1 from the law of Nations are
the points next to be considered, which may be referred
either to wars in GENERAL, or to those of a PARTICULAR
description.
Wars in GENERAL are those, which properly first come
tinder notice.
By the LITERAL law of nature, no one is bound by the
actions of another, except the person, who succeeds to
his property. For the introduction and establishment
of property introduced and established also the power of
transferring it with all its incumbrances. The Emperor
Zeno however pronounces it repugnant to natural justice
for one man to be molested for the debts of another.
A principle, which gave rise to the distinctions in the
Roman law, that the wife could not be sued for her
husband, nor the husband for his wife, nor a son for his
father, nor a father or mother for their son. Nor, as
Ulpian clearly states it, could individuals be answerable
for the debts of the community, and more especially if
that community be possessed of property. Indeed if
that were not the case individuals could only be obliged
to contribute their due proportion, as members of that
community.
Seneca says, <(if any one lends money to my country,
I am not to be considered as his debtor, nor to take the
debt upon myself, though I am bound to pay my due
proportion of it." There was a special provision made
in the Roman law, that one peasant should not be bound
for the debts of another, and it is laid down as a rule,
(307)
3o8 HUGO GROTIUS
that the goods of one person shall not be distrained for
the debts of another, even if they be public debts; and
in Justinian's Novels, pledges for others are forbidden,
and the cause assigned for it is, because it is unreason
able that one person should incur the debt, and another
be bound to the payment of it, an exaction to which the
name of ODIOUS is given. King Theodoric Cassiodor,
calls it a shocking licence for one man to be detained
as a pledge for another.
II. Although in the preceding observations there may
be a great deal of truth, yet it is possible, and indeed
appears actually to be the case, that the voluntary law of
nations introduced the practice of rendering all the cor
poreal, and incorporeal property, belonging to the subjects
of any state or sovereign, liable to the debts, which that
state or sovereign may have incurred, either personally,
or by refusing to make such reparation, as may be due
for the injuries and aggressions, which they have com
mitted,
Yet this is a practice, which nothing but necessity
could justify; for, on any other ground, it would be
opening a door to innumerable acts of wanton aggression
and injustice against individuals. As the property of
states and sovereigns cannot often so easily fall into an
enemy's hand, as that belonging to individuals, who are
more numerous, and whose property is consequently more
exposed. So that rights of this kind are to be reckoned
among those, which Justinian says, are the offspring of
stern necessity, the calamities of men driving them to the
use of such means.
But though a practice like this owes its introduction
to NECESSITY, it is not so far at variance with the law of
nature, as to exclude CUSTOM and TACIT agreement from
having some share in its establishment. For we find
that sureties are bound by no other tie, but that alone
of having given their consent. Besides, it might easily
be supposed, that it was the best method of redress
against the subjects of another state, where the aggrieved
persons could not so easily prosecute their rights, or
obtain indemnities, the claims or injuries of strangers
being but little understood, and perhaps still less regarded
in a foreign land.
Subjects, being thus liable to the loss of their property,
by the conduct of their fellow subjects, or by that of the
state, might sometimes feel it a hardship, while on other
THE RIGHTS OF WAR AND PEACE 309
occasions, it would prove their greatest security against
aggressions from the subjects of another power.
That this was a received custom appears not only from
the regular wars, carried on by one state against another,
the rules observed in which are often named in the mani
festoes issued on such occasions: the form of which may
be seen in the first book of Livy, where it is said, (< I
declare war against the ancient nations of the Latins, and
likewise against the respective individuals" ; and the same
writer, in his thirty first book, informs us, that, upon the
question being put to the people, they were asked, whether
it was their pleasure that war should be declared against
Philip, and against the Macedonians, his subjects. — But
the same custom also prevailed, even before the com
mencement of actual and open hostilities between two
states, when mutual acts of aggression by the subjects of
each power could be regarded as nothing but the eve, and
prelude to a declaration of war. The words used by
Agesilaus to Pharnabazus will serve to elucidate this
point : he said ; (( While we were friends to the king of
Persia, we treated him and his subjects in a friendly man
ner: now we are enemies, you can expect nothing from
us but hostilities. Therefore, Pharnabazus, while you
chuse to continue a vassal to the King, we wound him
through your sides. y>
III. The Athenians had a method somewhat like this of
seeking redress, which they called dvdputy</>tat a seizure
of men's persons, which was laid down in the Attic law
in the following terms, (< if any one has been murdered in
a foreign country, the nearest relatives of the deceased are
authorized to seize any three subjects of that country, but
not more than three, till the perpetrators of the deed be
punished, or at least delivered up to the hands of justice
for that purpose. )}
In this case we find that the personal liberty of subjects,
which may be considered as a kind of incorporeal right,
including the right of residing where they please, or doing
whatever they may think proper, is made answerable for
the debt of the state, who is bound to punish the criminal
acts of her subjects: so that the subject suffers constraint,
till the state has discharged the debt, which it is bound
to pay; and by the payment of this debt is meant the
punishment of the guilty. For although the Egyptians,
as we learn from Diodorus Siculus, maintained that
neither the person, nor liberty of any one ought to be
310 HUGO GROTIUS
bound or constrained for a debt, there is nothing in it
repugnant to the law of nature, and by the practice not
only of the Greeks, but of other nations, the opposite
opinion seems to have been established.
Aristocrates, who was contemporary with Demosthenes
had made a motion for a decree, that if any one killed
Charidemus, it might be lawful to seize him, wherever
he was to be found, and that any one, who attempted to
rescue that person, should be deemed an enemy. De
mosthenes finds fault with many parts of this decree.
For in the first place, Aristocrates had omitted making
a proper distinction between murder and a lawful put
ting to death, the latter of which is an act of justice in
the next place, he has said nothing of bringing the per
son to a regular trial: besides, it was not the persons,
among whom the murder had been committed, but those
who afterwards received the murderer, that were to be
declared enemies. Demosthenes says, that <( the regular
law prescribes, that if the persons in whose district a
murder has been committed, neither punish, nor deliver
up the perpetrator of the crime, three of their peo
ple shall be liable to be seized. But this decree, allow
ing the persons in whose district it has been committed
to escape with impunity, not even naming THEM, passes
sentence upon those, who in conformity to the common
laws of humanity have received the fugitive, if they do
not deliver him up, which would be a breach of the pro
tection due to a suppliant. w
The fourth point, in which he blames Aristocrates, is
for having carried matters to the extremities of open and
actual war, in a case, where the law only authorized the
seizure and detention of particular persons. Of these
arguments, the first, the second, and the fourth, are by
no means destitute of weight. But the third argument,
unless it be confined entirely to the circumstance of ac
cidental death, or that necessarily occasioned by defend
ing one's self, may be regarded more as an oratorical
flourish than a just and solid reason. For the law of
nations extends the privileges, and character of suppli
ants to those only, who have left their country on ac
count of misfortune, and not owing to crimes. Indeed
if the law of nations made no such distinction, the
persons, among whom a crime has been committed, and
who may be suspected of having countenanced the
deed, and those who barely refuse to punish or deliver
THE RIGHTS OF WAR AND PEACE 311
tip the guilty fugitive, would be upon an equal footing
as to right. So that it was either USAGE, which GRADU
ALLY introduced the above interpretation of that law, to
which Demosthenes appeals, or it was afterwards more
EXPRESSLY ESTABLISHED, in order to avoid such cavils.
For no one can deny the truth of one of these positions
who has attended to the observation of Julius Pollux,
that (< the seizure and detainder of persons can be en
forced, whenever a power cannot obtain the surrender
of fugitive murderers, which they demand. In this case
the aggrieved power or individual may seize and detain
any three of the people belonging to the state, which re
fuses to make that surrender. }>
It is upon the same principle that any power may de
tain the subjects of another state, in order to procure
the release of any subjects of her own, unjustly seized,
and imprisoned by that state.
IV. Another method of obtaining redress for any vio
lation of persons, or property is by having recourse to
what, in modern language, are called REPRISALS, which
the Saxons and Angles denominated WITHERNAM, and to
which the French gave the name of LETTERS OF MARQUE,
and those were usually obtained from the crown.
V. It is generally understood that recourse may be had
to this method of redress not only against a foreign ag
gressor, but also against a debtor, if justice cannot be
obtained in due time: but in NOTORIOUS cases, which
admit of no doubt, this right may be enforced even be
yond the strict letter of the law. For even in DOUBTFUL
matters, the presumption will always be in favour of
judges appointed by public authority. For it is unlikely
that they should GREATLY, or WANTONLY exceed their
power; especially when, if so inclined, they have not the
same means of enforcing their decrees against foreigners,
as against their fellow subjects. Indeed even in disputes
between subjects of the same country, they cannot annul
a just debt. Paulus, the Lawyer, says that a REAL
DEBTOR, though discharged, owing to some informality or
inability of the law to enforce payment, still remains a
debtor according to the law of nature.
And when, in consequence of a judicial sentence, a
creditor, under pretext of seizing his own property, had
taken from a debtor something which did not belong to
him though it was in his possession: upon the discharge
of the debt, a doubt arising whether the thing should be
312 HUGO GROTIUS
restored to the debtor, Scaevola maintained that it cer
tainly ought to be restored.
There is a difference between the two cases. For sub
jects, AS SUCH, cannot make any violent resistance to the
execution of a sentence, which they may not deem satis
factory, nor can they prosecute any right in opposition
to the law. FOREIGNERS may use violent means to enforce
a right: tho' they are not justified in using such means,
while there is any possibility of obtaining redress in a
legal, and peaceable manner.
It is on such grounds that reprisals are made upon the
persons and property of the subjects, belonging to a
power, who refuses to grant redress and reparation for
injuries and aggressions. It is a practice not literally
enacted by the law of nature, but generally received
through custom. It is a practice too of the greatest
antiquity: for in the eleventh book of the Iliad, we find
Nestor giving an account of the reprisals, which he had
made upon the Epeian nation, from whom he took a great
number of cattle, as a satisfaction for a prize which his
father Neleus had won at the Elian games ; and for debts
due to many private subjects of the Pylian kingdom.
Out of this booty the king having selected his own due,
equitably divided the rest among the other creditors.
VI. It has been a received opinion with many nations,
that reprisals might be made even upon the LIVES of in
nocent subjects, owing to the right, which it was sup
posed that every one had over his own life, and which
might be transferred from the individual to the state.
A doctrine, which, as it was proved in the first book of
this treatise, can never be reconciled either to sound
religion or morality. Indeed a person may ACCIDENTALLY,
though not INTENTIONALLY be killed by us in attempting
to prevent him from violently obstructing us in the
prosecution of a lawful right. Yet if such an accidental
calamity could be foreseen, the law of charity, setting so
pre-eminent a value upon the life of man, would in such
a case prescribe the forbearance of our right.
VII. But on this, as well as other points, we must
take care not to confound the natural and fundamental
law of nations, with the civil and conventional law oi
particular states.
By the law of nations all the permanent subjects, both
natives and settlers, of an offending state or sovereign are
liable to suffer reprisals : but the same rule does not bind
THE RIGHTS OF WAR AND PEACE 313
those, who are passing through a country, or only resid
ing in it for a time. For such reprisals are a kind of
pledges, like public burdens, made answerable for the
public debts, from which foreigners, being temporary
residents, though owing obedience to the laws, are to
tally exempt.
In the same manner, Ambassadors, but not those sent
from an enemy to our enemies, and their property, are
exempt from such conditions by the law of nations. By
the CIVIL LAW too of many countries an exception is
made in favour of women and children, of men of letters,
and those who are travelling for the purposes of trade.
But by the law of NATIONS the goods of all are liable to
reprisals, as was the case at Athens, respecting the seiz
ure of persons. In many places, by the civil law, the
right of making reprisals is obtained of the sovereign,
and in others, of the judges.
By the law of nations the property of all captures is
devoted to discharge the debt, and defray the expenses
incurred, the remainder of which, after due satisfaction
obtained, and peace concluded, should be restored. By
the civil law the persons interested are summoned to ap
pear, the property is sold by public authority, and the
money, accruing from thence, divided among all who are
entitled to a share of the same. But these and other
points of the same kind are to be learned from civilians,
who are conversant in such matters, and particularly
from Bartolus, who has written upon reprisals. This
subject may be closed with one observation, that will in
some measure tend to soften the rigour of this stern,
but necessary right, and that observation is, that such
as by not discharging a debt, or granting redress, have
occasioned reprisals to be made, are bound, in justice
and honour, to make good the losses of those, who have
thereby suffered.
CHAPTER in.
ON JUST OR SOLEMN WAR ACCORDING TO THE LAW OF
NATIONS ON DECLARATIONS OF WAR.
Solemn war, according to the Law of Nations between different states
— A people, though engaged in unjust war, to be distinguished
from pirates and robbers — Change in the condition of belligerents
— Formal war can be made by the Sovereign power alone — Dec
laration of war — The Law of Nature, Law of Nations, respecting
the same — Declaration, conditional, absolute — Forms of declara
tion introduced by the civil law — War declared against a Sover
eign includes his subjects, and allies — The reason why allies are
included — Declarations, why necessary to establish certain effects
— Whether actual warfare immediately follows a declaration, con
sidered — Whether the violation of an Ambassador's rights to be a
just ground of war.
I. IN THE first book of this treatise it was observed,
that according to the best writers, a war is defined to
be just, not on account of the CAUSES solely, in which it
originates, nor on account of the MAGNITUDE of its objects,
but from certain, peculiar, effects of right, with which
it is attended.
But to what kind of war such an appellation most duly
belongs will be best understood by considering the defi
nition, which the Roman Lawyers have given of a PUBLIC
or NATIONAL enemy. <( Those, says Poinponius, are PUBLIC
and LAWFUL ENEMIES, with whose STATE our own is engaged
in war: but enemies of every other description, come
under the denomination of pirates and robbers. With
that opinion Ulpian entirely accords, making an addi
tional observation, that (( if any one be taken by robbers,
as he is not a lawful prisoner of war, he cannot claim
of his own state the right of postliminium. But if he
be taken prisoner by a public enemy of the state, being
considered as a prisoner of war, he is entitled by the
right of postliminium to be restored to his former con
dition. »
These opinions are supported by that of Paulus, who
maintains, that persons captured by pirates still continue
free, that is, are not to be considered as prisoners, for
whom an exchange may be demanded. So that by the
opinion of the Roman Lawyers it is evident, that no war
314)
THE RIGHTS OF WAR AND PEACE 315
is considered to be lawful, regular, and formal, except
that which is begun and carried on by the sovereign
power of each country. Cicero, in his fourth Philippic,
describes <( a public and authorised enemy to be the
person, who possesses the civil and military powers of
the state, who can command the treasury, and the
services of the people in support of his measures, and
who, as occasions offer, has power to conclude treaties
of peace and amity. M
II. A state, though it may commit some act of aggres
sion, or injustice, does not thereby lose its political
capacity, nor can a band of pirates or robbers ever be
come a state, although they may preserve among them
selves that degree of subordination, which is absolutely
necessary to the subsistence of all society. For with the
latter, the commission of crime is the SOLE bond of union,
whereas the former, though not always free from blame,
but occasionally deviating from the laws of nature, which
in many cases have been in a great measure obliterated,
still regulate their conduct by the treaties, which they
have made, and certain customs that have been estab
lished, being united among themselves for the mutual
support of lawful rights, and connected with foreign
states by known rules of standing polity.
The Scholiast, upon Thucydides, remarks that the
Greeks, at the time when piracy was reckoned lawful,
forebore committing massacres, or nightly depredations,
and carrying off the oxen that were necessary for the
plough. We are informed by Strabo, that other nations
too, who lived by plunder, after they had returned home
from their predatory voyages, sent messages to the
owners, whom they had plundered, to know if they would
redeem the captures at a fair price.
In morals, the whole system often derives its name
from some one of the principal parts, as Cicero remarks,
in the fifth book of his BOUNDS of GOOD and EVIL, and
Galen observes that a mixture is often called by the
name of its chief ingredient. So that Cicero is not alto
gether correct in saying, that a state is not merely
diseased, but entirely destroyed, by the injustice of its
component and leading members. For a morbid body is
still a body, and a state, though dreadfully diseased, is
still a political being, as long as its laws and tribunals
and other necessary parts of its constitution remain, to
administer justice and give redress to foreigners, no less
316 HUGO GROTIUS
than to private subjects in their actions against each
other.
There is a beautiful observation in Dion Chrysostom,
who compares the law of a state, particularly that branch
of it relating to the law of nations, to the body ani
mated by the soul, upon the departure of which the cor
poreal frame becomes a mass of lifeless clay: in the
same manner political society cannot subsist without the
guiding and controuling principle of law. Aristides, en
couraging the Rhodians to harmony, observes, that even
under a tyrannical government many good laws may be
found.
These are points, which may be cleared up by ex
amples. Thus Ulpian maintains that those who are cap
tured by pirates cannot be considered as prisoners of
war: but if captured by the Germans, for instance, or
any national enemy, they lose their liberty for a time.
But the Germans, as we are informed by Caesar, thought
acts of plunder, if committed in a foreign territory, no
disgrace. Tacitus says that the Cattians, a noble race
of people in Germany, and the Garamantians were ad
dicted to the same habits of pltmder, yet still retained
their rank among states. — Such is the difference between
a national and political body, and a band of men uniting
together SOLELY FOR THE COMMISSION OF CRIMES.
III. A change may occur not only in the situations of
individuals, as in those of Jephthah, Arsaces, and Viri-
atus, who, from being leaders of voluntary bands, became
lawful commanders; but the same has also happened
with respect to whole communities, which being origin
ally composed of nothing but freebooters have, by the
gradual course and changes of time, risen to the rank
and dignity of states.
IV. What has been said with respect to the right of mak
ing formal and lawful war, being vested in the sovereign
power alone, includes those who have any share in the
sovereign power, as the different communities forming
the States General of many commonwealths. The same
rule will hold good of those, who are not SUBJECTS of a
superior state, but joined to it in confederacy by an un
equal treaty: innumerable instances of which are to be
found in history. This was the case between the Ro
mans and their allies, the Volscians, the Latins, and the
Spaniards: and all whom we read of being engaged in
wars, which were considered as lawful and just.
THE RIGHTS OF WAR AND PEACE 317
V. But to make a war just, according to this meaning,
it must not only be carried on by the sovereign author
ity on both sides, but it must also be duly and formally
declared, and declared in such a manner, as to be known
to each of the belligerent powers. Cicero, in the first
book of his offices, points out <( the equity of the rules
prescribed by the Roman Law for the declaration of war,
from whence it may be concluded that no war is regular
or just, but such as is undertaken to compel restitution,
and to procure indemnity for injuries, and that too ac
companied with a formal declaration. }) Livy also in the
same manner deems an observance of these rules req
uisite to form the characteristic of a just war. And
describing an incursion of the Acarnanians into Attica,
and their ravaging the country, he says that <(those acts
of irritation ended in a declaration of JUST and REGULAR
war on both sides. w
VI. In order to understand all these points clearly re
specting the declaration of war, an accurate distinction
must be made between the principles, which are founded
on the law of nature itself, and those, which, though not
derived immediately from that source, are still found to
be just : it will be necessary also to examine, what is re
quired by the law of nations towards obtaining, IN WAR,
all the consequences, privileges and effects of that law,
and, at the same time, to investigate the consequences
and rights arising from the peculiar laws and customs of
particular nations.
To repel force, or to punish a delinquent, the law of
nature requires no declaration. And, as Thucydides re
lates, Sthenelaidas, one of the Ephori, maintains that
<( where we have been injured, not by WORDS, but by AC
TIONS, the matter cannot be decided by WORDS and FORMS. *
And Aelian, after Plato, observes that it is not the dec
laration of the Herald, but the voice and law of nature,
which proclaim war, undertaken to repel force. Hence
Dion Chrysostom, in addressing the Nicomedians,
says that many wars are begun without any declara
tion.
Upon the same ground Livy condemns the conduct of
Menippus, a general belonging to Antiochus for having
killed some Roman citizens before any declaration of
war had been made, or even before a sword had been
drawn, or a drop of blood spilt, to shew that hostilities
were intended. By this objection he proves that either a
3i 8 HUGO GROTIUS
formal declaration, or some act indicative of hostilities
was deemed requisite to justify actual warfare.
Neither, if we follow the law of nature, is there any
more occasion for notice or declaration, where an owner
intends to lay hands upon HIS OWN PROPERTY. But when
ever one thing is taken in return for another, or the
property of a debtor is seized for the recovery of a debt,
and, especially, if any one intends seizing the property
of those, who are subjects to the debtor, a formal de
mand must be made, as a proof that recourse to such
security is the only means left of obtaining redress and
satisfaction. Such a demand is necessary because that
is not a PRIMARY and ORIGINAL right, but a SECONDARY
right, SUBSTITUTED in the place of the primary and
original, by the artificial rules of civil law.
In the same manner to justify an attack upon a sov
ereign power for the aggressions and debts of its sub
jects, a previous remonstrance, and a proper demand of
justice must be made to that power. For it is only by
refusing to punish the guilty, or to grant indemnity to
the injured, that states or sovereigns can be implicated
in the misconduct of their subjects.* But even where
the law of nature does not directly prescribe that such
a remonstrance or demand should be made, yet the com
mon principles of humanity and equity will recommend
thef use of any means, that may prevent recourse to
the calamities of war. The commandment given by God
to the Hebrews, to send a message of peace to any state
or city, before they began an intended attack, was de
signed as a special command to that people, yet some
have confounded it with the general law of nations. For
it was not ANY kind of peace that was meant by that in
junction, but only such a peace as imposed terms of
SUBJECTION and TRIBUTE. We are informed by Xenophon,
that when Cyrus went into the country of the Armeni
ans, he sent messengers to the king, to demand the tribute
and number of troops, which had been stipulated by treaty.
But to obtain the peculiar rights and consequences re
sulting from the law of nations, a declaration of war by
one of the parties, at least, if not by both, is absolutely
requisite in all cases.
VII. Those declarations are either conditional or abso
lute. A conditional declaration is that which is coupled
*See b. ii. ch. xxi. sect. 2. of this treatise
f See b. ii. ch. xxiii. sect. 7. ibid.
THE RIGHTS OF WAR AND PEACE 319
with a demand of restitution or redress. Under the name
of restitution, the FECIAL LAW of Rome, that is the LAW
RESPECTING DECLARATIONS OF WAR, comprehended not only
the claims, which OWNERSHIP established, but the prosecu
tion of EVERY right arising- from criminal or civil causes.
Hence the declarations were couched in terms, requir
ing restoration, satisfaction, or surrender. Here, by the
term, surrender, the party appealed to is understood to
have the option either of punishing the offender, him
self, or delivering him up to the aggrieved person. This
manner of demanding restitution is, according to the
testimony of Pliny, called CLARIGATION, that is, a LOUD
and FORMAL DEMAND. Livy gives us an example of a con
ditional and qualified declaration, wherein the aggrieved
power denounces (( a determined resolution to prosecute
her rights with the utmost violence, if the agressor will
not make reparation and atonement for the injury he has
done." Tacitus also relates the substance of a dispatch
sent to Caecina by Germanicus, wherein he declares, that
<( if the ringleaders of the mutinous and rebellious legions
are not immediately punished, he will advance with his
army, and put the whole to the sword. w
An ABSOLUTE declaration of war is issued, where any
power has already begun hostilities, or committed acts
which call for exemplary punishment. Sometimes indeed
a conditional, is followed by an absolute war, though in
such a case the latter is not actually necessary, but only
a confirmation of the former. This gave rise to the form,
which says, (<an appeal is hereby made against such a
people, as unjust and refusing to grant redress. >} There
is another form also purporting, that <( the principal
herald of the Roman citizens has made known to the
principal herald of the ancient Latins, and to the Latin
people, that redress is demanded of them by just and
lawful war, on account of all the disputes which they
have refused to settle, and the indemnities which they
have been bound to grant, and have refused; and that
this is the only means remaining to recover all that has
been unjustly detained. w There is also a third mode of
declaration, which runs in the following tenour; "Since
the ancient people of the Latins have committed aggres
sions against the people of Rome, the people of Rome,
with the advice and consent of the senate, declare war
against them, and in the name of the senate and people
of Rome their purpose is thus published."
320 HUGO GROTIUS
But that in case of RENEWED wars such a declaration is
not absolutely necessary, appears from the circumstance
of its being" made in due form at the nearest garrison,
and not PERSONALLY to the offender himself, according to
the answer given by the heralds, when they were con
sulted in the case of Philip of Macedon, and afterwards
respecting Antiochus. Whereas a declaration for the FIRST
time should be made to the enemy himself. Indeed in
the war against Pyrrhus the declaration was made to
one of his soldiers, in the Flaminian Circus, where, as
Servius observes in his notes on the sixth book of the
Aeneid, he was commanded to purchase a piece of ground,
as a handle for dispute. A proof also that IN SOME CASES
a declaration is superfluous may be taken from the cir
cumstance that war is frequently declared by BOTH SIDES,
which was done by the Corcyraeans and Corinthians in
the Peloponnesian war, though a declaration by one of
the parties would have been sufficient.
VIII. As to the use of the caduceum, or staff with
the figure of two snakes twisted around it, which am
bassadors carried, when they sued for peace, it was a
ceremony peculiar to the GREEKS, and not derived from
the GENERAL law of nations. The ROMANS in the same
manner had particular customs, such as using vervain in
forming alliances, throwing a bloody spear, as a declar
ation of war, renouncing all former friendship and
alliance at the expiration of thirty days, after satisfaction
had been demanded and refused, and again throwing
another spear. None of these PECULIAR customs ought
to be confounded with the GENERAL law of nations. For
Arnobius informs us, that in his time many of them had
fallen into disuse, and even in the time of Varro some
of them were omitted. The third Punic war indeed was
not declared till the moment of its actual commencement
IX. A declaration of war, made against a sovereign,
includes not only his own subjects, but all who are likely
to become his associates, as thereby they make them
selves accessories in the war. And this is what the
modern lawyers mean, when they say that, in bidding
defiance to a Prince, we bid defiance to all his associates.
For they give the name of defiance to a declaration of
war. By which is understood the war carried on with
the power against whom it has been declared. Thus upon
war being declared against Antiochus, there was no
occasion for a separate declaration against the Aetolians,
THE RIGHTS OF WAR AND PEACE 321
who had openly joined Antiochus. For, as the heralds in
their answer justly observed, the Aetolians had, by that
act voluntarily brought war upon themselves.
X. But if after the conclusion of such a war it should
be deemed expedient to attack any other nation or king for
having furnished supplies and assistance towards that
war, a new declaration of war will be necessary. For
that nation or king is then to be considered, not as
an accessory, but as a principal enemy. And therefore
it was with reason said, that the war of Manlius against
the Galatians, and that of Caesar against Ariovistus, were
not just wars according to the law of nations. For war
was made upon them not as accessories, but as princi
pals. So that for this purpose, as the law of nations
would have required a declaration, in the same manner
the Roman law would have required a new order of the
Senate.
For on the motion being made for the war with An
tiochus, the question was also put, whether it should not
at the same time be made with his adherents. The same
rule also being observed against King Perseus, it must
be understood, as including the adherents during all the
time that war with those princes continued; and impli
cating all, who in reality gave them support.
XI. The reason why a declaration is necessary to con
stitute what is deemed, according to the law of nations,
a just war, is not that which some writers assign. For
they allege that it is to prevent every appearance of
clandestine and treacherous dealing: an openness, which
may be dignified with the name of magnanimity, rathei
than entitled a matter of right. On this point, we are
informed that some nations have gone so far, as to settle
and make known the very time and place of a general
engagement.
But waving all conjecture, a more satisfactory reason
may be found in the necessity that it should be known
for CERTAIN, that a war is not the PRIVATE undertaking
of bold ADVENTURERS, but made and sanctioned by the
PUBLIC and SOVEREIGN authority on both sides; so that it
is attended with the effects of binding all the subjects of
the respective states; — and it is accompanied also with
other consequences and rights, which do not belong to
wars against pirates, and to civil wars.
XII. There is much truth indeed in the observations,
which some have made, and which they have produced
322 HUGO GROTIUS
examples to confirm, that even in wars of this kind all
captures become the lawful prize of the captors.
Yet this is only partially true, and that too, according
to the law of nature, and not according to the voluntary
law of nations. For the latter only makes provision to
secure the rights of nations, as WHOLE communities, and not
of those, who, as in civil wars, form but ONE PART of a
nation.
The same writers are mistaken too in the supposition
that defensive wars require no declaration. For it is no less
necessary to shew by way of vindication that it is a de
fensive war, and at the same time by public declaration
to give it the character of a national and lawful war, in
order to establish those rights and consequences, that
have been already mentioned, and which will hereafter be
more fully explained.
XIII. They maintain another position also, which is by
no means true, and that is, that a power ought not
IMMEDIATELY to follow up a declaration of war with actual
hostilities, as Cyrus did to the Armenians, and the
Romans to the Carthaginians. For the law of nations
requires the intervention of no DEFINITE time between the
declaration and the commencement of war.
There may indeed be some cases, where natural justice
will render such a delay proper. Thus, for instance,
where reparation for injury, or the punishment of aggres
sors is demanded, it is but reasonable to wait till it can be
known, whether the just demand will be complied with
or rejected.
XIV. In order to establish the same consequences, a
declaration will be equally necessary too, where the rights
of Ambassadors have been violated. Yet it will be suf
ficient for it to be made in the manner, in which it may
be done with the greatest safety. As in many other
matters, in places which afford no security, satisfaction
is demanded by denunciation or summons.
CHAPTER IV.
ON THE RIGHT OF KILLING AN ENEMY IN LAWFUL WAR,
AND COMMITTING OTHER ACTS OF HOSTILITY.
General explanation of the effects of formal war — Distinction between
lawful and innocent impunity — Merit of the latter — Examples
added to explain it — General effects of former war considered
with respect to lawful impunity — The reason of their introduction
— Historical testimonies — By this right all persons, found within
an enemy's territory, objects of hostility — Also all going thither
before the war — The subjects of an enemy liable to be seized every
where, except protected by the laws of a neutral teritory — Case of
women and children — Case of prisoners — Of those whose voluntary
offer of surrender is rejected — Unconditional surrender — Retaliation
— Obstinate defence — Hostages.
I. SERVIUS in his comment on the passage of Virgil,
where that poet says that war (( will authorise mutual
acts of destruction and rapine, w in tracing the fecial or
herald's law to Ancus Martins, and even beyond him to
a still more remote period, remarks that, <( if ever the
persons or property of subjects, belonging to the Roman
state, were seized and carried off by any other nation,
the principal Herald, or King at arms went out with
the sacred ministers, who presided at the making of
solemn treaties, and proceeding to the verge of the ter
ritories of the offending nation, declared with a loud voice
the cause of the war, and the refusal of that nation
either to restore what had been seized, or to deliver up
the aggressors to justice. After this he threw a spear
to indicate that war and all its consequences were from
that moment begun. w
The commentator had previously observed that the
ancients gave the name of rapine to every act of hostility
even where there was no act of plunder committed;
and they likewise called every kind of restitution a
satisfaction.
By this explanation we learn that whenever war is pro
claimed between two states or sovereigns, it is accom
panied with certain rights or consequences, which do not
NECESSARILY belong to war itself. And this is perfectly
(323)
324 HUGO GROTIUS
conformable to the examples from the Roman Lawyers,
which have been before produced.
II. But it will be proper to consider how far the law
fulness, which Virgil speaks of, extends. For the term
lawful sometimes implies whatever is just and pious in
all respects, although the pursuit of a different course
may perhaps be more laudable: according to the expres
sion of St. Paul, who says, (< all things are lawful to me,
but all things are not expedient. )} Ulpian is speaking of
a seller, who, at the expiration of a certain period, is not
answerable for the safety of goods, which a buyer has
neglected to take away, says he, will yet think himself
bound in EQUITY to preserve them with all imaginable
care. On some occasions when it is said, that men may
LAWFULLY do a thing, the expression only means that
doing such act will not subject them to human and legal
penalties, but it by no means indicates that the action is
strictly conformable to the rule of religion and morality.
Thus among the Lacedaemonians and Egyptians stealing
was allowed: an indulgence that by no means took away
the GUILT of theft.
Cicero in the fifth of his Tusculan questions, speaking
of Cinna, beautifully and justly points out this abuse of
the word, LAWFUL. (< He seems to me, says he, a wretched
man indeed for having done those acts, and for having
been in a situation, where they might be thought lawful.
It can never be lawful for any man to do wrong: but we
fall into a great mistake in the use of that word: for we
consider a thing to be lawful, which any one may do with
impunity. w This is the meaning, in which the term is
generally understood, as the same orator, in addressing
the judges in behalf of Rabirius Posthumus, observes, (( it
behoves you to consider, what is becoming your character,
and not what the rigour of the law allows you to inflict.
For if you consult the full extent of your authority, you
may make away with any citizen you please. »
In the same manner legislators, as it was proved in a
former book of this treatise, are not accountable, in their
legislative capacity, to any human tribunal, for the laws,
which they make, yet they cannot, in a moral point of
view, avail themselves of this transcendent power to enact
a thing that is evidently unjust. In this sense we often
meet with a distinction made between what is proper or
right, and what is lawful. Thus Cicero, in his speech for
Milo, makes the LAW OF NATURE the standard of what is
THE RIGHTS OF WAR AND PEACE 325
RIGHT, and LEGAL AUTHORITY, the standard of what is
lawful.
III. Thus qualified, the annoyance of an enemy, either
in his person or property, is lawful. This right extends
not only to the power engaged in a just war, and who
in her hostilities confines herself within the practice
established by the law of nature, but each side without
distinction has a right to employ the same means of
annoyance. So that any one taken in arms, even in
another's territory, cannot be treated as a robber, male
factor, or murderer, nor can even that neutral power, in
whose territory he is taken, treat him as an enemy, for
being found in arms.
IV. This principle was established by nations to pre
vent others from interfering in their disputes, or giving
the law to them respecting the rights of war. Besides,
if this were not the case, neutral powers would frequently
be involved in the wars of others. A reason which the
people of Marseilles urged in the dispute between Caesar
and Pompey. They alleged that they had neither suf
ficient judgment to determine on which side justice lay,
nor, if they could determine, had they strength to give
effect to their decisions.
A spectator indeed is but ill qualified to judge, how
far, even in the most just war, self-defence, the attain
ment of indemnity, or the punishment of an aggressor,
may be carried. These are points, which, on many, if
not most, occasions must be left to the conscience and
discretion of the belligerents themselves: a mode far
preferable to that of appealing to the mediation, and
decision of disinterested and neutral powers. Livy has
given an address of the Achaeans to the senate, in which
they ask, (( how their availing themselves of the rights of
war can ever be fairly called in question, or made a
subject of discussion ? })
Besides the impunity attending certain actions done in
war, the acquisition of territory by the right of conquest
is another topic of consideration, which will hereafter be
examined.
V. The lawfulness of injuring or destroying the person
of a public enemy is supported by the testimony of many
of the best writers, both poets, moralists, and historians.
In one of the tragedies of Euripides, there is a proverb,
which says, that (( to kill a public enemy, or an enemy
in war is no murder. w Therefore the custom of the
326 HUGO GROTIUS
ancient Greeks, which rendered it unlawful and impious
to use the same bath, or to partake of the same festivi
ties and sacred rites with a person who had killed another
in time of peace, did not extend to any one who had
killed a public enemy in war. Killing an enemy is in
deed everywhere called a right of war. <( The rights of
war, says Marcellns in Livy, support me in all that I have
done against the enemy. }) And the same historian gives
the address of Alcon to the Saguntines, where he says,
(( You ought to bear these hardships, rather than suffer
your own bodies to be mangled, and your wives and
children to be seized and dragged away before your eyes. w
Cicero in his speech in defence of Marcellus passes a high
encomium upon the clemency of Caesar, who, <(by the
laws of war and the rights of victory, might have put to
death all, whom he had spared and protected. }> And
Caesar observes to the Eduans, that <( it was an act of
kindness in HIM, to spare those whom the laws of war
would have authorised him to put to death. >}
But the rights of war, for which these writers plead,
could not PERFECTLY JUSTIFY the putting prisoners to death,
but could only grant IMPUNITY to those who availed them
selves of the barbarous custom. There is a wide differ
ence however between actions like these, and destroying
an enemy by proper means of hostility. For, as Tacitus
says, <( in the leisure hours of peace the merits and de
merits of every case may be examined and weighed, but,
in the tumult and confusion of war, the innocent must
fall with the guilty": and the same writer, in another
place, observes, that (( there are many actions, which the
principles of humanity cannot ENTIRELY approve, but
which the policy of war requires. }) And it is in this,
and no other sense that Lucan has said, (< the complexion
of right may be assigned to what is wrong.
VI. This right of making lawful what is done in war
is of great extent. For in the first place it comprises,
in the number of enemies, not only those who actually
bear arms, or who are immediately subjects of the bel
ligerent power, but even all who are within the hostile
territories, as appears from the form given by Livy, who
says, that (< war is declared against the sovereign, and all
within his jurisdiction. >} For which a very good reason
may be assigned; because danger is to be apprehended
even from THEM, which, in a continued and regular war,
establishes the right now under discussion.
THE RIGHTS OF WAR AND PEACE 327
Reprisals do not come exactly under the same rule.
For like taxes, they were introduced for the discharge
of public debts, for no part of which temporary residents,
or foreigners are answerable. Therefore Baldus is right
in his observation, that, after war is actually begun,
much greater latitude is allowed, than in the bare right
of making reprisals. So that what is said of foreigners,
who enter into an enemy's country, and reside there,
after war is avowedly declared and begun, is undoubt
edly true.
VII. But persons, who had gone to reside there before
the war was begun, seem by the law of nations to be
included in the number of enemies, unless within a
reasonable time they chuse to withdraw. So that the
Corcyraeans, when going to besiege Epidamnus, gave
leave to all strangers to withdraw, denouncing that they
would otherwise be treated as enemies.
VIII. But the persons of natural-born subjects, who owe
permanent allegiance to a hostile power may, according
to the law of nations, be attacked, or seized, wherever
they are found. For whenever, as it was said before,
war is declared against any power, it is at the same time
declared against all the subjects of that power. And the
law of nations authorises us to attack an enemy in every
place: An opinion supported by most legal authorities:
thus Marcian says ((that deserters may be killed in the
same manner as enemies, wherever they are found. M
They may be lawfully killed there, or in their own
country, in the enemy's country, in a country belonging
to no one, or on the sea. But as to the unlawfulness of
killing, or violently molesting them in a neutral terri
tory, this protection does not result from any personal
privileges of THEIR OWN, but from the rights of the SOV
EREIGN of that country. For all civil societies had an un
doubted right to establish it as a standing maxim that
no violence should be offered to any person within their
territories, nor any punishment inflicted but by due
process of law. For where tribunals retain their author
ity in full vigour, to try the merits of every offence,
and, after impartial inquiry, to acquit the innocent, or
condemn the guilty, the power of the sword must be re
strained from inflicting promiscuous death.
Livy mentions the circumstance of seven Carthaginian
gallies riding at anchor in a port belonging to Syphax,
who was then at peace with the Carthaginians and
328 HUGO GROTIUS
Romans. Scipio arrived at that time, with two gallies,
which might have been attacked and sunk by the Car
thaginians, before they could enter the port: a brisk
wind rising carried them in, before the Carthaginians
could weigh anchor; but out of respect to the king's au
thority they durst not attack the Romans in his harbour.
IX. But to return to the subject, which is, to decide
how far the powrer of lawfully destroying an enemy, and
all that belong to him, extends. An extent of which we
may form some conception from the very circumstance,
that even women and children are frequently subject to
the calamities and disasters of war. There is no occa
sion to allege in this place, as an example, the conduct
of the Hebrews, who slew the wromen and children of
the Heshbonites, and who were commanded to execute
vengeance upon the Canaanites, and upon all, who were
involved in the same guilt. Those examples, where God
MANIFESTLY interposes his commands, are not to be drawn
into a precedent for authorising actions of the SAME kind
on DIFFERENT occasions. For the supreme and disposing
power of God can never properly be compared with that,
which men are allowed to exercise over each other. The
Psalmist's expression of the Babylonian children being
dashed against the stones is a much stronger proof of
the custom commonly prevailing among nations, in the
use of victory, to which the language of Homer bears a
close resemblance, where the poet says, that (< in the
cruel rage of war, even the bodies of infant-children were
dashed against the ground. }> Thucydides relates, that
when Mycalessus was captured by the Thracians, they
put all, even women and children to the sword. Arrian
relates the same of the Macedonians, when they took the
city of Thebes. And Germanicus Caesar, according to
the account of Tacitus, laid waste whole cantons of the
Marsians, a people of Germany, with fire and sword, to
which the historian adds, <( without sparing either age or
sex." The Jewish women and children too were exposed
by Titus, to be torn to pieces by wild beasts at a pub
lic spectacle. Yet neither of those generals were thought
deficient in humanity, so much had custom reconciled
the minds of men to this barbarous usage. So that the
massacre of the aged, like that of Priam by Pyrrhus, is
no way surprising.
X. The right of putting prisoners of war to death, was
so generally received a maxim, that the Roman Satirist
THE RIGHTS OF WAR AND PEACE 329
has founded an adage upon it, and said, (<that when you
can sell a prisoner for a slave, it would be absurd to
kill him.^ Words which imply the full power of doing
so, if the captor thought proper. The commentators in
deed assign the act of saving, as the derivation of the
Latin word, scrvus, a slave. Thus Thucydides speaks of
the prisoners taken at Epidamnus, and killed by the
Corcyraeans, and Hannibal is reported to have massacred
five thousand prisoners at once. Nor was this power
limited by the law of nations to any particular time,
though it was controuled by greater restrictions in some
places, than in others.
XI. Besides many examples occur of suppliants, being
killed. Both ancient poets and historians relate such
actions, as ordinary practices, authorised by the laws of
war. Augustin commends the Goths for sparing sup
pliants, who had fled to churches for refuge, and adds by
way of comment, that (< they deemed it unlawful to avail
themselves of the power, which had usually been allowed
by the laws of war. w
Nor did those who offered to surrender always experi
ence the lenity and mercy, which they sought thereby.
Tacitus relates, that when the city of Uspes was invested,
the besieged sent a deputation with offers of an immedi
ate surrender, and of no less than ten thousand slaves,
on condition that the free-born should remain unhurt.
The terms were rejected — A proof that such a rejection
was thought conformable to the rights of war.
XII. But even after an unconditional surrender, we find
that those, who had capitulated were sometimes put to
the sword. In this manner the princes of Pometia were
treated by the Romans, the Samnites by Sylla, the
Numidians and Vercingetorix by Caesar. It was almost a
standing practice with the Romans to crown their tri
umphs with the death of an enemy's generals, whether
made prisoners actually in the field, or by capitulation,
Cicero notices this custom in his fifth speech against
Verres. Livy may be consulted on this point in many
parts of his history, particularly in the twenty-eighth
book: and Tacitus also in the i2th book of his Annals.
The latter writer, in the first book of his HISTORY, re
lates that Galba ordered every tenth man of those,
whom he had, upon their earnest supplication, admitted
to surrender, to be beheaded: and Caecina, after the
capitulation of Aventicum, punished Julius Alpinus, one
330 HUGO GROTIUS
of the leading men, with death, as a chief promoter of
the war, leaving the rest to the mercy or cruelty of
Vitellius.
XIII. Historians sometimes account for this right of
putting enemies to death, especially prisoners, or suppli
ants, either on the score of retaliation, or for obstinate
resistance. These may sometimes be the real, but cannot
be the JUSTIFIABLE motives of such proceedings. For the
law of retaliation, strictly and properly so called, must be
directly enforced upon the person of the delinquent him
self. Whereas, in war, what is called retaliation fre
quently redounds to the ruin of those, who are no way
implicated in the blame. The general consequences of
war are thus described by Diodorus Siculus, (< they could
not be ignorant, says he, having learnt from experience,
that all being involved in the common fortune of war,
they are liable on both sides in defeat, to suffer the same
calamities, which they themselves would have inflicted
upon the conquered party. w
But as the Neapolitans reply to Belisarius, in Procopius,
no one can fee thought deserving of punishment for a
resolute adherence to the side on which he is engaged,
especially when actuated by natural and just motives in
his choice of that side. So far from incurring guilt by
such a resolution, it is on the other hand more criminal
for any one to desert his post: and so it was judged by
the military laws of ancient Rome. Livy says, it was a
capital offence, for which no fear of danger could be
pleaded as an excuse. So that in the rigid application of
this right, OWING TO ITS IMPORTANCE, every one is left to
use his own discretion, and there may be times and
circumstances, in which the law of nations will justify its
full exertion.
XIV. The same right was exercised upon hostages also,
not only upon those who had bound themselves, as it
were, by convention, but even upon those, who had been
delivered up by others. Two hundred and fifty hostages
were once massacred by the Thessalians, and the Volsci
Aurunci to the amount of three hundred by the Romans.
It is to be observed that children were sometimes given,
as hostages, which we find was done by the Parthians,
and by Simon, who was one of the Maccabees. And in
the times of Porsena it was usual to deliver women, as
hostages: a practice, which, as Tacitus informs us, was
followed by the Germans.
THE RIGHTS OF WAR AND PEACE 331
XV. As the law of nations permits many things, in the
manner above explained, which are not permitted by the
law of nature, so it prohibits some things which the law
of nature allows. Thus spies, if discovered and taken,
are usually treated with the utmost severity. Yet there
is no doubt, but the law of nations allows any one to
send spies, as Moses did to the land of promise, of whom
Joshua was one.
Persons of that description may sometimes be LAWFULLY
employed by those, who are engaged in an EVIDENTLY
just war. Others too, who have not such evident proofs
of the justice of their cause, may plead the rights of war
as a vindication for employing such persons.
But if any are to be found, whc disdain to avail them
selves of such a privilege, or opportunity, no argument
either FOR, or AGAINST the LAWFULNESS of employing spies
can be drawn from their conduct, which proceeds rather
from a nobleness of mind, and a confidence in open
strength, than from any decided opinion upon the subject.
CHAPTER V,
ON THE RIGHT TO LAY WASTE AN ENEMY'S COUNTRY, AND
CARRY OFF His EFFECTS.
An enemy's property may be wasted and plundered — Things deemed
sacred, how far exempted — Stratagem, how far permitted.
I. CICERO, in the third book of his offices, has said
that there is nothing repugnant to the LAW OF NATURE
in spoiling the effects of an enemy, whom by the same
law we are authorized to kill. Wherefore it is not sur
prising that the same things should be allowed by the
LAW OF NATIONS. Polybius, for this reason, in the fifth
book of his history, maintains, that the laws of war
authorise the destruction of an enemy's forts, harbours,
and fleets, the seizure of his men, or carrying off the
produce of his country, and every thing of that descrip
tion. And we find from Livy that there are certain
rights of war, by which an enemy must expect to suffer
the calamities, which he is allowed to inflict, such as the
burning of corn, the destruction of houses, and the plunder
of men and cattle. Almost every page of history abounds
in examples of entire cities being destroyed, walls levelled
to the ground, and even whole countries wasted by fire
and sword. Even in cases of surrender, towns have some
times been destroyed, while the inhabitants were spared
— an example of which is given by Tacitus, in the taking
of Artaxata by the Romans ; the inhabitants opened their
gates and were spared, but the town was devoted to the
flames.
II. Nor does the law of nations, in. itself, considered
apart from other duties, which will be mentioned here
after, make any exemption in favour of things deemed
sacred. For when places are taken by an enemy, all
things without exception, whether sacred or not, must
fall a sacrifice. For which it is assigned as a reason,
that things which are called sacred, are not actually ex-
cepted from all human uses, but are a kind of public
property, called sacred indeed from the general purposes,
to which they are more immediately devoted. And as a
proof of this, it is usual v when one nation surrenders to
(332)
THE RIGHTS OF WAR AND PEACE 333
another state or sovereign, to surrender, along with other
rights, every thing of a sacred kind, as appears by the
form cited from Livy in a former part of this treatise.
And therefore Ulpian says, that the public have a
property in sacred things. Conformably to which Tacitus
says, that (( in the Italian towns all the temples, the im
ages of the Gods, and every thing connected with reli
gion belonged of right to the Roman people. w For this
reason a nation, as the Lawyers, Paulus and Venuleius
openly maintain, may, under a change of circumstances,
convert to secular uses things, that have before been
consecrated: and an overruling necessity may justify the
hand, which has formerly consecrated the object in em
ploying it as one of the resources and instruments of
war. A thing which Pericles once did under a pledge
of making restitution: Mago did the same in Spain, and
the Romans in the Mithridatic war. We read of the
same actions done by Sylla, Pompey, Caesar, and others.
Plutarch in his life of Tiberius Gracchus says that noth
ing is so sacred and inviolable, as divine offerings: yet
no one can hinder these from being removed or applied
to other purposes at the pleasure of the state. Thus
Livy mentions the ornaments of the temples, which Mar-
cellus brought from Syracuse to Rome, as acquisitions
made by the right of war.
III. What has been said of sacred things and edifices
applies also to another kind of solemn fabrics, and those
are sepulchral structures, which may be considered not
merely as repositories of the dead, but as monuments
belonging to the living, whether families or states. For
this reason Pomponius has said, that these, like all other
sacred places, when taken by an enemy may lose their
inviolability, and Paulus is of the same opinion, observ
ing that we are not restrained by any religious scruple
from using the sepulchres of an enemy: for the stones,
taken from thence, may be applied to any other purpose.
But this right does not authorise wanton insult, offered
to the ashes of the dead. For that would be a violation
of the solemn rights of burial, which, as it was shewn
in a preceding part of this work, were introduced and
established by the law of nations.
IV. Here it may be briefly observed, that, according"
to the law of nations any thing, belonging to an enemy,
may be taken not only by open force, but by stratagem,
provided it be unaccompanied with treachery.
CHAPTER VI.
ON THE ACQUISITION OF TERRITORY AND PROPERTY BY
RIGHT OF CONQUEST.
Law of nature with respect to the acquisition of things captured in
war — Law of nations on the same subject — In what cases the
law of nations confirms the capture of things moveable — Lands
acquired by conquest — Lawful prize cannot be made of things not
belonging to an enemy — Goods found on board an enemy's ships
— Law of nations authorises the making prize of what an enemy
has taken from others in war — Sovereigns may acquire possession
and dominion through those employed by them — Acts of hostility
divided into public and private — Territory may be acquired by a
sovereign or people — Private and public captures explained — Dis
cretionary power of generals in this respect — Prizes belong either
to the treasury, or to those, who take them — Places sometimes
given up to be plundered by the soldiery — Different methods of
dividing spoils — Peculation, a portion of the spoils sometimes given
to allies, who have supported the war — Sometimes given up to
subjects — This illustrated by examples — Utility of the above prac
tices — Whether things taken without the territory of either of the
belligerent powers can be acquired by the rights of war — In what
manner this right peculiarly applies to solemn wars.
I. BESIDES the impunity allowed to men for certain ac
tions, which have been mentioned before, there are other
consequences and effects, peculiar to the law of nations,
attending solemn and formal war. The law of nature
indeed authorises our making such acquisitions in a just
war, as may be deemed an equivalent for a debt, which
cannot otherwise be obtained, or as may inflict a loss
upon the aggressor, provided it be within the bounds of
reasonable punishment. According to this right, as we
find in the fourteenth chapter of Genesis, Abraham de
voted to God a tenth part of the spoils, which he had
taken from the five kings: and the inspired writer in the
seventh chapter of his Epistle to the Hebrews gives the
same interpretation of this passage. In the same manner
the Greeks too, the Carthaginians, and the Romans, de
voted a tenth portion of the spoils of war to their deities.
Jacob, in making a particular bequest to Joseph above
his brethren, says, <( I have given to thee one portion
above thy brethren, which I took out of the hand of the
Amorite with my sword, and with my bow.w In this
(334)
THE RIGHTS OF WAR AND PEACE 335
place, the expression, I TOOK, is used according to the
prophetic style, where an event, that will for certain take
place, is spoken of in the past time, and an action is
here attributed to Jacob, which some of his descendants
were to perform, supposing- the progenitor and his chil
dren to be the same person.
Nor is it upon conjecture alone that such a right is
founded, but the divine law giver himself pronounces
sentence against a city that has rejected the offers of
peace, and afterwards been taken by storm, that he gives
all her spoils to the conqueror.
II. But according to the law of nations, not only the
person, who makes war upon just grounds; but any one
whatever, engaged in regular and formal war, becomes
absolute proprietor of every thing which he takes from
the enemy: so that all nations respect his title, and the
title of all, who derive through him their claim to such
possessions. Which, as to all foreign relations, consti
tutes the true idea of dominion. For, as Cyrus, in Xen-
ophon observes, when the city of an enemy is taken,
every thing that is taken therein becomes a lawful prize
to the conquerors; and Plato, in his treatise on laws
asserts the same. Cicero in his speech against Rullus
says that Mitylene belonged to the Roman people by the
laws of war, and the right of conquest; and, in the first
book of his offices, he observes, that some things become
the private property of those, who take possession of
them, when unoccupied, or of those, who make a con
quest of them in war. — Theophilus, in his Greek insti
tutes, calls the one the natural mode of acquisition, and
Aristotle denominates the other the natural way of acqui
sition by the sword, without regarding any other reason,
but the bare fact, from which the right arises. Thus
Nerva; the son, as Paulus the lawyer relates, said that
property arose from natural possession, some traces of
which still remain respecting wild animals taken either
upon the sea, or upon the land, or birds flying in the
air. It is seen also in things taken in war, all which
immediately become the property of the first captors.
Now things are considered as taken from an enemy,
when taken from his subjects.
Thus Dercyllides argues, in Xenophon, that as Phar-
nabazus was an enemy to the Lacedaemonians, every
thing belonging to Mania, who was his subject, might
be seized by the laws of war.
336 HUGO GROTIUS
III. But in this question upon the rights of war nations
have decided, that a person is understood to have made
a capture, when he detains a thing in such a manner, that
the owner has abandoned all probable hopes of recover
ing it, or, as Pomponius, speaking on the same subject,
says, when a thing has escaped beyond pursuit. This
takes place with respect to moveable things in such a man
ner, that they are said to be taken, when they are carried
within the territories of the enemy, or places belonging to
him. For a thing is lost in the same manner as it is recov
ered by postliminium. It is said to be recovered whenever
it returns within the territories of its owner's sovereign, that
is, into places, of which he is master. Paulus indeed has
expressly said, that a power or state has lost a subject, when
he has gone, or been carried out of the territories of that
power; and Pomponius defines a prisoner of war to be an
enemy, whom the troops of some other belligerent power
have taken and carried into one of their own places ; for be
fore he is carried into those places, he continues still a
subject of the enemy.
The law of nations, in these respects, treated persons
and things in the same manner. From whence it is easy
to understand, what is meant, when in another place it is
said that things taken from an enemy immediately be
come the lawful prize of the captors, but only upon the
condition of those things continuing in their possession for a
reasonable and certain time. Consequently it is plain, that
ships and other things taken at sea cannot be considered as
really the property of the captors, till they have been
carried into some of their ports, or to some place where
their whole fleet is stationed. For in that case all hope
of recovery seems to have vanished. By a late regulation
among the European powers, it has been made an estab
lished maxim of the law of nations, that captures shall be
deemed good and lawful, which have continued in the
enemy's possession for the space of twenty four hours.
IV. Lands are not understood to become a lawful pos
session and absolute conquest from the moment they
are invaded. For although it is true, that an army takes
immediate and violent possession of the country which it
has invaded, yet that can only be considered as a tem
porary possession, unaccompanied with any of the rights
and consequences alluded to in this work, till it has been
ratified and secured by some durable means, by cession,
or treaty. For this reason, the land without the gates of
THE RIGHTS OF WAR AND PEACE 337
Rome, where Hannibal encamped, was so far from being-
judged entirely lost, that it was sold for the same
price that it would have been sold for before that
period.
Now land will be considered as completely conquered,
when it is inclosed or secured by permanent fortifica
tions, so that no other state or sovereign can have free
access to it, without first making themselves masters of
those fortifications. On this account Flaccus, the Sicilian,
assigns no improbable conjecture for the origin of the
word territory, because the enemy is DETERRED from enter
ing it. At least there is as much probability in this con
jecture, as in that of Varro, who derives it from the word
terendo, treading the soil. Frontinus deduces it from
terra, the earth, and Pomponius from the TERROR of judi
cial authority exercised in each country. Xenophon how
ever in his book on tributes, seems to accord with the
first of these opinions: for he says, that in time of war
the possession of a country is kept by walls, strong holds,
and barriers.
V. It is a clear point too, that for any thing to become
a prize or conquest by the right of war, it must belong
to an enemy. For things, within an enemy's territory,
for instance, in any of his towns or garrisons, cannot be
acquired as property by the laws of war, if the owners
of those things are neither subjects nor confederates of
the enemy. It is observed in one of the speeches of
Aeschines, that Philip, though at war with the Amphi-
politans, could not lawfully take possession of Amphipo-
lis, as a conquest, it being a city, which belonged to the
Athenians. For as the enemy is likely to derive no assist
ance in the war, from things which neither belong to
himself, nor to a confederate, no just reason can be as
signed for taking them, and the right of making things
change their owners by force is of too odious a nature
to admit of any extension.
VI. The observation usually made, that all things on
board an enemy's ships are to be deemed an enemy's
goods, ought not to be received as a STANDING and
ACKNOWLEDGED rule of the law of nations, but only as a
maxim, indicating the strong presumption that both goods
and vessel belong to the same owner, unless clear proof
to the contrary can be brought. The States General of
Holland made such a decision in the year 1338, at a time
when the war with the Hanse-towns raged with the
338 HUGO GROTIUS
greatest violence, and the decision consequently passed
into a law.
VII. According1 to the law of nations it is undoubtedly
true, that things taken from an enemy which had been
captured by him cannot be claimed by those, to whom
they belonged before they were in the enemy's posses
sion, and who had lost them in war. Because the law of
nations assigned them to the enemy by the first capture,
and then to the person, who took them from him by the
second.
Upon this principle among others, Jephthah defends
himself against the Ammonites, because by the laws of
war they had lost the land, which they claimed, in the
same manner, as another part had been transferred
from the Moabites to the Amorites, and from the
Amorites to the Hebrews. Thus David too claims and
divides as his own, what he himself had taken from
the Amalekites, and the Amalekites, before him, from
the Philistines.
Titus Largius, as we are informed by Dionysius of
Halicarnassus, when the Volscians laid claim to some
possessions, which they had formerly held, delivered it as
his opinion in the Roman Senate, that <( the Romans
were the fair and just owners of what they had gained
by the right of conquest, nor ought they to be so weak
as to abandon the fruits of their valour. For not only
the people of that day, but their posterity also had a
right to a share of those possessions: so that to abandon
them would be treating themselves like enemies."
VIII. and IX. One great point, which the law of
nations designed to establish, was that the effects or pos
sessions of one enemy should be considered by another,
as things having no owner.
Things, belonging to no one, became the property of
those, who find or take them, both of those, who, like
sovereign powers, employ others in such service, and of
those, who take them with their own hands.
Thus not only slaves, or the immediate members of a
man's household, but all, who engage themselves, any
way, in the service of others, may be said to acquire for
their employers all the property, which they take or gain,
even in those things, which apparently lie in common to
all men, such as pearls, fish, or fowl.
Modestinus has justly said, (< that whatever is naturally
gained, like a possession, we may acquire through the
THE RIGHTS OF WAR AND PEACE 339
means of any one we chuse to employ, w and, upon the
same principle, Patiltis observes, that <c in every acquisi
tion, the exertion of mind and body must concur; the for
mer purely our own, and the latter, either our own, or that
of another. In the same manner possession may be taken
for us by an attorney, guardian, or trustee, provided they
do it on our account and in our name. }> The reason of which
is, because one man may naturally be the voluntary in
strument of another, with the consent of that other. So
that the distinction made between persons in a servile
and free condition, as to the acquisition of property, is a
distinction only of the civil law, and applicable to its
rules of transferring, acquiring, and confirming, property.
And yet the emperor Severus afterwards applied these
rules to the natural acquisition of things, not only from
motives of utility, but, as he avowed himself, from motives
of equity and justice. So that, apart from all authority
of the civil law, it is an established maxim that what any
one can do for himself, he can do through means of an
other, and doing such acts by another is the same as
doing them himself.
X. A distinction must be made between actions in war,
that are really of a PUBLIC NATURE, and the acts of INDI
VIDUALS, occasioned by public war: by the latter, individuals
acquire an absolute and direct property, in the things,
which they take, and by the former, the state makes those
acquisitions. Upon this principle of the law of nations
Scipio treated with Masinissa, stating that as it was under
the auspices of the Roman people, that Syphax was con
quered and taken prisoner, himself, his wife, his kingdom,
his territory, his towns, and subjects inhabiting those
towns, in short, every thing belonging to him became a
lawful prize to the Roman people. In the same manner,
Antiochus the Great maintained that Coelo-Syria belonged
to Seleucus, and not to Ptolemy, because Seleucus had
been the principal in the war, to which Ptolemy had con
tributed his assistance. In the fifth book of Polybius,
there is an account of the matter.
XI. Things immoveable are generally taken by some
public act, such as marching an army into the country,
or placing garrisons there. So that, as Pomponius has
said, "lands taken from the enemy become the property
of the state, and form no part of the booty belonging to
the individual captors. }> Thus among the Hebrews and
Lacedaemonians, lands that were made a conquest, were
340 HUGO GROTIUS
divided by lot. The Romans too either retained con
quered lands to let them out for rent, sometimes leaving
a small portion to the ancient possessor, or divided them
among" colonists, whom they sent out, or made them
tributary; innumerable instances of which we meet with
in their histories, their laws, and treaties on the ad
measurements of lands.
XII. But things moveable, whether inanimate, or living,
are taken either as connected or unconnected with the
public service. When unconnected with the public serv
ice, they become the property of the individual captors.*
Reference may here be made to the remark of Celsus,
that (( enemy's goods found among us do not belong to
the state, but to the prior occupant. J> By which are
meant things found among us at the breaking out of a
war. For the same was observed of persons, when,
under the same circumstances, they were considered as
goods taken.
On this subject there is a remarkable passage in Trypho-
ninus. (( Those persons, says he, who have gone into a for
eign country in time of peace, upon the sudden breaking
out of war, are made slaves by those, among whom it
is their misfortune to be found, being considered as
enemies. }>
XIII. What has been said upon the law of nations, al
lowing individuals to acquire property by taking it from
an enemy, must be understood as meaning the law of
nations, prior to the regulations of civil laws upon that
point. For the capture of an enemy's goods which at
first appear to resemble things in common, which any
one may seize, is now, like that of wild birds or beasts,
subject to limitation by the laws of every state, being
in some cases assigned to the sovereign, and in others,
belonging to the captors. It may in some countries, in
deed, be introduced as a rule of law for the whole of an
enemy's goods found there to be confiscated.
XIV. The case is very different respecting what any
one takes in actual engagements. For there every indi
vidual bears the character of his country, acting in her
stead, and supporting her rights. Through the exertions
of those individuals, the state acquires both property and
dominion, with a power, according to the principles of
civilized countries, of conferring them on whom she pleases.
* But such captures cannot be made without authority from the
sovereign.
THE RIGHTS OF WAR AND PEACE 341
This is not a practice of modern date, but one prevail
ing among the most free and independent nations of
remote antiquity. The poets, and historians of those
days, describe the hero, after the heat, the burden, and
dangers of the day, carrying his spoils to the common
stock, to be divided by the General among the army,
after retaining his proper share to himself.
XXIII. * It is observed by legal authorities to be a
custom, which has silently gained ground, for either
allies or subjects, who engage in war, without pay, and
at their own risque and expence, to be rewarded with
the captures that they make.
The reason, why allies have such a privilege, is evi
dent. Because one ally is naturally bound to another to
repair the losses, which he has sustained by entering
into a mutual agreement to support a common cause.
Besides it seldom happens, that services are given with
out some consideration in return.
Quintilian, applying the same reasoning to another
case, alleges that it is but just for orators and advocates,
who devote their whole time and talents to the business
of others, to be requited for their services: as thereby
they preclude themselves from acquiring gain in any
other way.
It is most likely therefore that some advantage gained
from the enemy is always expected, as a compensation for
the loss and risque incurred, unless there is evidence to
the contrary from some antecedent treaty, in which there is
an express stipulation for gratuitous assistance and services.
XXIV. Such claim to a share of the spoils is not equally
evident, where SUBJECTS ONLY are concerned. For the
state has a RIGHT TO THEIR SERVICES. Still where ALL are
not engaged in arms, but only SOME, those, who give up
their time to the calling of soldiers, and expose their lives
to its hazards, have a right to be rewarded and supported
by the body politic: — and as a compensation for this loss
of time, and this personal danger, it is but reasonable they
should have a share of the spoils.
With respect to allies there is an example in the Roman
treaty, in which the Latins are admitted to an equal share
of the spoil, in those wars, which were carried on under
the auspices of the Roman people.
* The translation proceeds from the XV. to the XXIII. Section of
the original, the intermediate Sections being only a confirmation of the
preceding arguments by examples from ancient history. — TRANSLATOR.
342 HUGO GROTIUS
Thus in the war, which the Aetolians carried on with
the assistance of the Romans, the lands and cities were
ceded to the Aetolians, and the prisoners and moveable
effects were given to the Romans. After the defeat of
king Ptolemy, Demetrius gave part of the spoils to the
Athenians. Ambrose, in speaking of the expedition of
Abraham, shews the equity of this practice. He asserts
that it was but just for those, who had assisted him as
partners in the danger, to share in the prizes, which were
their due reward.
As to what were the privileges of subjects in these
respects, we have a proof in the conduct of the Hebrews,
among whom it was usual for half of the spoils to be given
to those, who were engaged in battle. In the same
manner the soldiers of Alexander were allowed to appro
priate to themselves whatever they took from individuals,
except that it was usual for a considerable portion to be
set apart for the king. So that it was made a subject of
accusation against those at Arbela, who were said to have
entered into a conspiracy for securing to themselves every
thing that was taken, without contributing a due propor
tion of it to the treasury.
But individuals were not allowed in the same manner
to appropriate to themselves the public property of an
enemy, that is, such as belonged to the state. Thus when
the Macedonians made themselves masters of the camp of
Darius at the river Piramus, and every thing was given
up to plunder, they spared the royal pavilion, in con
formity to an ancient custom, (C according to which, as
Curtius observes, it was always reserved as the properest
place, in which the victorious prince could be received. yy
There was a custom somewhat like this among the
Hebrews who always placed the crown of the vanquished
king upon the head of the conqueror, and assigned to him
every thing that was taken, belonging to the royal house
hold. We read of the same conduct in Charles the great,
who, upon conquering the Hungarians, gave up the pri
vate property as plunder to the soldiers, reserving for
the royal use all the public treasures.
Some things indeed are too inconsiderable to be made
public property. It is a generally received maxim for
such things to belong to the individual captors.*
* Our author here speaks of things taken in battle. For upon
the surrender of towns, in almost all articles of capitulation it is
stipulated, that the General and other superior officers, and the officers
THE RIGHTS OF WAR AND PEACE 343
This was the practice in the anciert times of the
Roman republic. A privilege not unlike this is some
times given to seamen, who serve for pay. It is what
the French call spoils, or pillage, including all wearing
apparel, and all gold and silver under the value of ten
crowns.
On this point different customs prevail in different
countries. In Spain sometimes a fifth, and sometimes
a third was allowed to the soldiers, and at others half
was reserved for the crown. On some occasions, a
seventh or tenth part was allowed to the general, and
the rest belonged to the captors, except ships of war,
which belong entirely to the crown. — Sometimes a division
was made in proportion to the hazard and expence : which
was the case among the Italians, where the third part of
the prize was assigned to the owner of the victorious
vessel, another third to those who had merchandise on
board, and the remaining third to the combatants.
In some cases it happens that private adventurers are
not allowed the whole of their captures, a certain portion
of which must go to the state or to those, who have
received a grant of such prizes from the state. Thus in
Spain, if in time of war ships are fitted out by private
persons, one part of the captures, which they make be
longs to the crown, and another to the Lord High Admiral.
So likewise in France, and Holland, the tenth part of a
prize belonged to the Admiral, a fifth also being pre
viously deducted for the use of the state. But by land it
is customary upon the taking of towns, and in battles,
for every one to keep the prizes which he takes. But in
excursions, every thing taken becomes the common stock
of all engaged, being afterwards divided amongst them
according to their respective ranks.
XXV. As a consequence deducible from the above
positions, it may be observed, that if a people not en
gaged in war be made mediators in a doubtful matter
respecting things captured in war, the cause must be
adjudged in favour of him, who has on his side the laws
and customs of the country, which he has espoused.
But if no such right can be proved, the prize must be
adjudged to the state, rather than to the individual
captor. — The maxim indeed of Quintilian can never be
of regiments shall preserve their swords and their private baggage, and
the noncommissioned officers and soldiers shall preserve their knap
sacks.
344 HUGO GROTIUS
admitted, that the laws of war can never be enforced in
matters, that may be decided by judicial authority; and
that, on the other hand, whatever has been gained by
arms can be maintained by force of arms alone.
XXVI. It was observed in a former part of this chapter,
that things, NOT BELONGING to an enemy, cannot be taken,
although found with him. For this is neither consonant
to natural justice, nor introduced by the law of nations.
But if in those things the enemy had any right connected
with possession, such as the right of pledge, retention or
service, that would not obstruct the power of the captors.
It is a disputed point, both as to persons and things,
whether they can be lawfully taken in the territory of a
power at war with neither of the belligerents. In regard
ONLY to the law of nations, as far as it allows us to kill
an enemy wherever he is found, the PLACE has nothing
to do with the question. But considering the rights of
the sovereign, to whom that territory belongs, he undoubt
edly has a right to forbid the seizure of persons, or the
capture of things within his own dominions: and may
demand satisfaction for the violation of that right. In
the same manner, though beasts, that are wild by nature,
become the property of those, who take them, still an
owner may forbid any one to commit a trespass upon his
lands in order to take them.
CHAPTER VII.
ON THE RIGHT OVER PRISONERS OF WAR.
By the law of nations, slavery the result of being taken in solemn
war The same condition extends to the descendants of those
taken — The power over them — Even incorporeal things may be
gained by the rights of war — Reason of this — This right not
prevalent to the same extent among Christian powers of the pres
ent day — The substitute used in place of this right.
I. BY THE law of nature, in its primaeval state; apart
from human institutions and customs, no men can be
slaves: and it is in this sense that legal writers maintain
the opinion that slavery is repugnant to nature. Yet in
a former part of this treatise, it was shewn that there is
nothing repugnant to natural justice, in deriving the ori
gin of servitude from human actions, whether founded
upon compact or crime.
But the law of nations now under consideration is of
wider extent both in its authority over persons, and its
effects. For, as to persons, not only those, who surren
der their rights, or engage themselves to servitude, are
considered in the light of slaves, but all, who are taken
prisoners in public and solemn war, come under the same
description from the time that they are carried into the
places, of which the enemy is master.
Nor is the commission of crime requisite to reduce them
to this condition, but the fate of all is alike, who are
unfortunantly taken within the territories of an enemy,
upon the breaking out of war.
II. and III. In ancient times, while slavery was per
mitted to exist, the offspring, born during captivity or
servitude, continued in the same condition as the parents.
— The consequences of such rules were of wide extent; —
there was no cruelty, which masters might not inflict
upon their slaves; — there was no service, the performance
of which they might not compel ; — the power even of life
and death was in their hands. However the Roman laws
at length set bounds to such wanton power, at least to
the exercise of it within the Roman territories.
(345)
346 HUGO GROTIUS
Every thing too, found upon the prisoner's person,
became a lawful prize to the captor. For as Justinian
observes, one who was entirely in the power of another
could have no property of his own.
IV. and V. Incorporeal rights, gained by the enemy,
along with the person so captured, cannot be considered
in the light of primary and original acquisitions. And
there are some rights so purely personal in their nature,
that they cannot be lost even by captivity, nor the duties
attached thereto ever be relinquished. Of such a nature
was the paternal right among the Romans. For rights
of this kind cannot exist but immediately with the person
to whom they originally belonged.
All these rights to prizes, which were introduced by
the law of nations, were intended as an inducement to
captors to refrain from the cruel rigour of putting pris
oners to death; as they might hope to derive some
advantage from sparing and saving them. From hence
Pomponius deduces the origin of the word, SERVUS, or
SLAVE, being one, who might have been put to death,
but from motives of interest or humanity had been
saved.
VI. (being the IX. of the original.) It has long been a
maxim, universally received among the powers of Chris
tendom, that prisoners of war cannot be made slaves, so
as to be sold, or compelled to the hardships and labour
attached to slavery. And they have with good reason
embraced the latter principle. As it would be incon
sistent with every precept of the law of charity, for men
to refuse abondoning a cruel right, unless they might be
allowed to substitute another, of great, though somewhat
inferior rigour, in its place.
And this, as Gregoras informs us, became a traditionary
principle among all who professed one common religion;
nor was it confined to those, who lived under the authority
of the Roman empire, but prevailed among the Thes-
salians, the Illyrians, the Triballians, and Bulgarians. —
Though such an abolition of slavery, and mitigation of
captivity may be considered as of trivial import, yet
they were effects produced by the intriduction of the
Christian religion, especially upon recollection that
Socrates tried, but without effect, to prevail upon the
Greeks to forbear making slaves of each other.
In this respect the Mahometans act towards each
other in the same manner as Christians do. Though it
THE RIGHTS OF WAR AND PEACE 347
is still the practice among Christian powers to detain
prisoners of war, till their ransom be paid, the amount
of which depends upon the will of the Conqueror, unless
it has been settled by express treaty. The right of de
taining such prisoners has sometimes been allowed to the
individuals, who took them, except where the prisoners
were personages of extraordinary rank, who were always
considered as prisoners of war to the state.
CHAPTER VIII.
ON EMPIRE OVER THE CONQUERED.
Civil and sovereign jurisdiction acquired by conquest — Effects of such
acquisition — Absolute power or mixed power gained by conquest —
Incorporeal rights acquired in the same manner — Thessalian bond
considered.
I. IF INDIVIDUALS can reduce each other to subjection,
it is not surprising that states can do the same, and by
this means acquire a civil, absolute, or mixed, dominion.
So that, in the language of Tertullian, victory has often
been the foundation of dominion, and it often happens,
as Quintilian remarks, that the boundaries of states and
kingdoms, of nations and cities, can only be settled by
the laws of war.
Quintus Curtius relates of Alexander, that he said, it
was for conquerors to dictate laws, which the conquered
were bound to receive. This has always been a general
opinion and rule, thus Ariovistus, in Caesar, laid it down
as an indubitable right of war, for the conqueror to im
pose whatever terms he pleased upon the conquered, nor
did he suppose the Roman people would allow any one to
interpose with them in the discretionary use of this
right.
By conquest, a prince succeeds to all the rights of the
conquered sovereign or state; and if it be a common
wealth, he acquires all the rights and privileges, which
the people possessed. He gains the same right, which
the state had before, to alienate the possessions, or to
transmit them if he chuses to his descendants, by which
means they will become a patrimonial territory.
II. The right of conquest may go even beyond this. A
state may hereby lose its political existence, so far as to
form an appendage to another power, which was the case
with the Roman provinces: or if a king engaged in war
against a state, at his own expence, has reduced it to
complete subjection, his authority over it becomes an
absolute, rather than a limited sovereignty. It can no
longer be called an independent state, but, by the right
(348)
THE RIGHTS OF WAR AND PEACE 349
of conquest, forms an integral part of the prince's im
mediate dominions. Xenophon in drawing the character
of Agesilaus, commends him for requiring no other serv
ices and obedience of the cities he had conquered, than
what is usually paid by subjects to their lawful sover
eigns.
III. From hence it will be easy to understand what is
meant by a mixed government, composed partly of civil,
and partly of absolute power; — it is a government, where
subjection is united with some degree of personal liberty.
We sometimes read of nations, that have been so far
subdued, as to be deprived of the use of all warlike arms,
being allowed to retain no instruments of iron, but the
implements of husbandry; and of others, that have been
compelled to change their national customs and language.
IV. States as well as individuals may lose their prop
erty by the laws of war : and even a voluntary surrender
is in reality nothing more than giving up what might
have been taken by force. For as Livy says, where all
things submit to the power of arms, the conqueror may
impose whatever terms, and exact whatever fines he
pleases. Thus the Roman people by the victories of
Pompey acquired all the territories, which Mithridates
had gained by conquest.
The incorporeal rights too, belonging to one state,
may pass to another by the rights of conquest. Upon
the taking of Alba, the Romans retained all the rights
belonging to that city. From hence it follows, that the
Thessalians were released from the obligation of paying
a sum of money, which they owed to the Thebans ; Alex
ander, upon the taking of Thebes, having, as a con
queror, forgiven the debt. Nor is the argument used by
Quintlian in favour of the Thebans, at all convincing:
he maintains that nothing but what is of a tangible na
ture can pass by right of conquest, a class of things to
which incorporeal rights can never be reduced: and that
there is a material difference between inheritance and
victory, the former of which may convey incorporeal
rights, but the latter can give nothing except things of
a solid and visible substance.
But on the other hand it may be justly said, that who
ever is master of the persons, is master also of all the
rights and things, which are vested in those persons,
who are in that case considered as having nothing of
their own. Indeed if any one should leave to a con-
350 HUGO GROTIUS
quered people their rights, as a state, still there are some
things belonging to that state, which he might appropri
ate to himself. For it is in his own power to determine,
to what extent his generosity, or the exertion of his
right shall go. Caesar imitated the conduct of Alexan
der, in forgiving the Dyrrachians a debt, which they
owed to some one of the opposite party. But the kind
of war, in which Caesar was engaged does not fall within
the rules of the law of nations.
CHAPTER IX.
Or THE RIGHT OF POSTLIMINIUM.
Origin of the term, postliminium — Where it takes effect — Certain
things recoverable thereby — In what cases the right of postlimin
ium prevails in peace, as well as war — What rights are recover
able, and what rights not recoverable — When a people is not
entitled to the right of postliminium — Extent of civil law in these
cases — Deserters — Ransomed prisoners — Subjects — Lands recov
ered by right of postliminium — Distinction formerly observed with
respect to movable things — Modern practice.
I. THE professors of law in former ages have given no
more satisfactory account of the rights of postliminium,
than they have done of those, respecting things taken
from the enemy. The subject has been more accurately
handled by the ancient Romans, but often still with a
considerable degree of confusion, so that a reader cannot
easily distinguish, what part they assign to the province
of the law of nations, and what part to the civil law of Rome.
Amidst a great variety of opinions, upon the meaning
of the word, postliminium, that of Scaevola seems the
most natural, who derives it from the word post, signi
fying a return after captivity, and limen the boundary or
entrance of the house, or from limes, a public boundary.
Thus the ancients called exile or banishment, eliminium,
that is, sending any one out of the boundaries of the
country.
II. Postliminium therefore, according to its original
signification, means the right, accruing to any one in
consequence of his return home from captivity. Pompo-
nius defines the right of postliminium to take place the
moment any one enters a town or garrison, of which his
sovereign is master; but according to Paulus he must
have entered within the territories of his own country
before he can be entitled to that right.
Upon this principle nations have, in general, gone so
far, as to allow the right of postliminium to take place,
where any person, or indeed any thing, coming within
the privileges of postliminium, have arrived within the
territory of a friendly or allied power.
By the term friends, or allies, used in this place, are
not simply meant, those who are at peace with another
(35D
352 HUGO GROTIUS
power, but those who are engaged in the same war,
and in a common cause with that power. So that all,
who have come into the territories of such powers, are
protected under the pledge of public faith. For it makes
no difference with respect to persons or things, whether
they are in the territories of those powers, or in their
own.
In the territory of a friendly power, who is not engaged
in the same cause with either of two belligerent parties,
prisoners of war do not change their condition, unless
it has been agreed to the contrary by express treaty; as
in the second treaty between the Romans and Cartha
ginians, it was stipulated that if any prisoners, taken
by the Carthaginians from powers friendly to the Ro
mans, should come into ports subject to the Roman
people, their liberty might be claimed: and that powers
friendly to the Carthaginians should enjoy the same
privilege. For this reason, the Roman prisoners taken
in the second Punic war, when sent into Greece, had not
the right of postliminium there, the Greeks being entirely
neutral, consequently they could not be released, till they
were ransomed.
III. According to the language of the ancient Romans,
even free men might be restored by the right of
postliminium.
Gallus ^Elius, in the first book of his explanation of
law-terms, defines a person restored to his original situa
tion by the right of postliminium, to be one, who had
gone from his own country, in a free condition, to
another, and returned to his own in consequence of such
right. By the right of postliminium a slave also who
has fallen into the hands of an enemy, upon his release
from thence, returns to the service of his former master.
As to the law of postliminium, horses, mules, and ships
are considered in the same light as slaves. And whatever
advantage this law gives any one in recovering persons
or things from an enemy, the enemy in his turn has equal
advantage from the same law.
But modern lawyers have made a distinction between
two kinds of postliminium, by one of which, persons
returned to their former condition, and by the other,
things are recovered.
IV. The right of postliminium may extend to those, who
are seized and detained in an enemy's country upon the
breaking out of war. For though during the continuance
THE RIGHTS OF WAR AND PEACE 353
of that war, there may be reason for detaining them, in
order to weaken the enemy's strength, yet, upon the con
clusion of a peace, no such motive and pretence can be
devised for their release being refused or delayed. It is
a settled point therefore that upon peace being made,
prisoners of the above description always obtain their
liberty, their claim to it being universally acknowledged.
With respect to other kinds of prisoners, every one
used what he wished to be thought his right, except
where fixed rules were prescribed by treaty. And for
ihe same reason, neither slaves, nor things taken in war
are restored upon a peace, except express stipulations be
made to that purpose. A conqueror too, in general,
wishes to have it believed that he had a right to make
such acquisition; and indeed the departure from such a
rule might give rise to wars without end.
V. and VI. A prisoner of war, upon his release, and
return to his own country, is entitled to all his privileges
THERE, and indeed to everything either corporeal, or in
corporeal, which he might have before possessed in a
NEUTRAL STATE, at the time of his captivity. For if such
a state, in order to preserve her neutrality, considered
his captivity as a matter of right on the part of the
enemy, so also, in order to shew her impartiality, she
cannot lawfully abridge his right to any thing he may
reclaim upon his release. The controul therefore, which
the person, to whom the prisoner belonged by the right
of war, had over his effects, wras not absolutely uncondi
tional: for he might lose it, even against his will, when
ever the prisoner came again under the protection, or
within the territories, of his own sovereign. Along with
the prisoner therefore he would lose everything, which
was considered as an appendage to his person.
In cases where effects taken in war have been alien
ated, a question arises, whether the law of nations con
firms the title, and secures the possession of the person,
who has derived or purchased them from him, who was
master of them by the rights of war, by having the pris
oner in his custody at the time of alienation, or whether
such things are recoverable; supposing the things to be
in a neutral territory.
A distinction seems proper to be made between things
recoverable by postliminium, and things excepted from
that right: so that every alienation of the former must
be qualified and conditional, but that of the latter may
23
354 HUGO GROTIUS
be absolute. By things alienated may be understood even
those, of which a gift has been made, or to which the
owner has relinquished every claim.
VII. Upon any one's returning to his former condition
by the law of postliminium, all his rights are restored as
fully, as if he had never been in the hands and power
of the enemy.
VIII. The case of those however, who have been con
quered by the arms of an enemy, and have surrendered
themselves, forms an exception to this rule ; because en
gagements of that kind must be valid, and honourably
adhered to according to the law of postliminium. So
that during the time of a truce, the right of postliminium
cannot be claimed.
But where a surrender has been made without any
express or positive convention the right of postliminium
exists in all its force.
IX. What has been said of individuals applies to na
tions: so that a free people, who have been subjugated,
upon being delivered from the yoke of the enemy by
the power of their allies, will recover their former con
dition.
But if the whole population that constituted a state
has been dispersed, the people can no longer be con
sidered as the same : nor does the law of nations in such
a case enforce the right of postliminium for the restora
tion of all effects formerly belonging to that people.
For as the identity of a ship, or any other material
object, can only be ascertained by the permanent union
of its original parts: so a nation can no longer be re
garded as the same, when every peculiar characteristic
belonging to it is effaced.
The state of Saguntum therefore was no longer judged
to be the same, when it was restored to its ancient pos
sessors, at the expiration of eight years : nor could Thebes
any longer be deemed the original city, as its inhabit
ants had been sold by Alexander for slaves. From
hence it is evident, that the Thebans could not, by the
right of postliminium, recover the sum of money, which
the Thessalians had owed them: and that for two rea
sons: because, in the first place, they were anew people;
and, secondly, because Alexander at the time that he
was absolute master of the city had a right, if he
thought proper, to relinquish the claim to that debt,
which he had actually done. Besides, a debt is not in
THE RIGHTS OF WAR AND PEACE 355
the number of things recoverable by the right of post
liminium.
The rules, respecting a state, are not much unlike
those laid down by the ancient Roman law, which made
marriage a dissoluble tie, so that it could not be re
stored by the right of postliminium : but a new consent,
and a new contract were necessary.
X. By the Roman civil law deserters were excluded
from the right of postliminium.
XI. and XII. It is a point of much importance to the
subject, and it was before declared in the affirmative,
that nations, which have been under a foreign yoke, re
cover their former condition, even though their deliver
ance has not been effected by their former sovereign, but
by some ally. It is a settled rule, where there is no
express treaty to the contrary. At the same time it is
but reasonable that such ally be indemnified for the ex-
pences incurred in accomplishing that deliverance.
XIII. Among things within the right of postliminium,
lands in particular attract our attention. For, as Pom-
ponius observes, upon the expulsion of an enemy lands
naturally revert to their former masters. And in this
sense expulsion is understood to take place from the time
that his free and open access to a territory is entirely
cut off.
Thus the Lacedaemonians, after taking Aegina from
the Athenians, restored it to its ancient owners. Jus
tinian and other emperors restored to the heirs of the
ancient possessors of the lands, which had been recov
ered from the Goths and Vandals, still reserving against
those owners all prescriptive rights, which the Roman
laws had introduced.
The privileges belonging to lands attach to every right
also connected with the soil. For religious or conse
crated places, that had been taken by an enemy, when
recovered returned, as Pomponius has said, to their former
condition.
Upon the same principle it was provided by a law in
Spain, that provinces, and all other hereditary jurisdic
tions, particularly supreme jurisdictions, should return to
the original possessors by the right of postliminium ; and
those of an inferior kind, if reclaimed within the space
of four years. Except that citadels lost by war always
belonged to the crown, in whatever manner they were
recovered.
31,6 HUGO GROTIUS
XIV. On the contrary a general opinion prevails, that
moveable property, which constitutes part of a lawful
prize, is not recoverable by the right of postliminium.
So that things acquired by purchase, wherever they are
found, continue the property of the purchaser. Nor has
the original owner a right to claim them, when found
in a neutral state, or even carried into his own territory.
Things useful in war, as we find, were formerly an
exception to this rule : an exception, which seems to have
been favoured by the law of nations in order to induce
men the more readily to provide them, in the hopes of
recovering them, if lost. And this indulgence was the
more easily granted, as most nations, at that period, in
all their customs, seem to have had an eye to a state of war
fare. — Among the things, coming under this description,
ships of war, and merchant-ships are reckoned, but
neither gallies, nor pleasure-boats: mules also are enu
merated; but only such as are used to carry baggage:
horses and mares too ; but only such as are broken in to
obey the bridle. And these are things, the bequest of
which the Roman law confirmed, and which might come
into the division of an inheritance.
Arms and cloathing indeed are useful in war, but still
they were not recoverable by the right of postliminium;
because the laws were by no means inclined to favour
those, who lost either in war: and such a loss was deemed
a disgrace, as we find from many parts of history. And
in this respect, a distinction was made between a soldier's
arms and his horse : because the latter might easily break
loose, and fall into an enemy's hands without any fault
of his rider. This distinction in moveable things seems
to have prevailed in the western parts of Europe, under
the Goths, even as far down as to the times of Boetius.
For in explaining the Topics of Cicero, he speaks of this
right, as a general custom of his day.
XV. But in later times, if not before, this distinc
tion seems to have been abolished. For all intelligent
writers speak of moveable effects as not recoverable by
the right of postliminium, and it has evidently been
decided so, in many places, with respect to ships.
XVI. The right of postliminium is quite unnecessary,
before the things taken have been carried into some
place of which the enemy is master, although they may
be in his possession : for they have not yet changed their
owner, by the law of nations. And, according to the
THE RIGHTS OF WAR AND PEACE 357
opinions of Ulpian and Javolenus, the law of postliminium
is no less superfluous, where goods have been taken by
robbers and pirates, because the law of nations does not
allow THEIR possession of the goods to convey any change,
or right of property to THEM.
Upon this ground, the Athenians wished to consider
Philip, as RESTORING, and not GIVING them Halonesus, of
which they had been robbed by pirates, from whom he
had taken it again. For things taken by pirates may be
reclaimed, wherever they are found; except that NATURAL
JUSTICE requires that the person, who has gained them
out of their hands, at his own expence, should be indem
nified, in proportion to what the owner himself would
willingly have spent for their recovery.
XVII. But a different maxim may be established by
the CIVIL LAW. Thus by the law of Spain, ships taken
from pirates become the lawful prize of the captors:
which may seem a hardship upon the original owners;
but in some cases individual interest must be sacrificed
to the public good: especially where the danger and dif
ficulty of retaking the ships is so great.* But such a
law will not prevent foreigners from asserting their
claims.
XVIII. It was rather a surprising maxim in the Roman
law, which established the right of postliminium, not only
between hostile powers, but between all foreign states,
and, in some cases, between those, who were members
of the Roman empire. But this was only a vestige of
the rude and pastoral ages, before society was perfectly
formed. So that even between nations, who were not
engaged in public war with each other, a kind of licence
resembling that of war prevailed.
In order to prevent such a licence from proceeding to
all the calamities and slaughter of war, the laws of cap
tivity were introduced: and, as a consequence of this,
postliminium took place, which might be considered as a
great step towards the formation of equal treaties, from
the rules of which pirates and robbers were excluded, and
which indeed they themselves despised.
XIX. In our times, the right of making prisoners, ex
cept in war, has been abolished not only among Christian
states, but even among the greater part of Mahometans,
*ttThe end of such a law is to animate soldiers and privateers to
pursue robbers and pirates, by the hopes of possessing things taken
even from the subjects of the state. w — Barbeyrac.
358 HUGO GROTIUS
those bands of society, which nature designed to estab
lish amongst men, being in some measure restored.
But the ancient law of nations seems still in force
against any rude or barbarous people, who, without any
declaration or cause of war, consider all mankind as ene
mies. A decision has lately been made in the principal
chamber of the parliament of Paris, declaring all effects
belonging to the subjects of France, and taken by the
Algerines, a people always engaged in predatory and
maritime warfare with all other countries, if retaken, to
belong to the captors. — At the same time it was decided,
that, in the present day, ships are not reckoned among
things recoverable by the right of postliminium.
CHAPTER XL*
THE RIGHT OF KILLING ENEMIES, IN JUST WAR, TO BE
TEMPERED WITH MODERATION AND HUMANITY.
In what cases strict justice allows the destruction of an enemy — Dis
tinction between misfortune and guilt — Between principals and
accessories in war — Distinction between unwarrantable and excus
able grounds of promoting war — Sometimes right and laudable to
forbear punishing an inveterate enemy — Every possible precaution
requisite to spare the innocent — Especially children, women, and
the aged, except they have committed atrocious acts — Clergymen,
men of letters, husbandmen, merchants, prisoners — Conditional sur
render not to be rejected — Unconditional surrender — Exceptions to
the above rules, some of them considered, and refuted — Delinquents
when numerous to be spared — Hostages to be spared — Unnecessary
effusion of blood to be avoided.
I. AND II. CICERO, in the first book of his offices, has
finely observed, that (( some duties are to be observed even
towards those, from whom you have received an injury.
For even vengeance and punishment have their due
bounds. }) And at the same time he extols those ancient
periods in the Roman government, when the events of
war were mild, and marked with no unnecessary cruelty.
The explanations given in the first chapter of this book
will point out the cases, where the destruction of an
enemy is one of the rights of lawful war, according to the
principles of strict and internal justice, and where it is not
so. For the death of an enemy may proceed either from
an accidental calamity, or from the fixed purpose of his
destruction.
No one can be justly killed by design, except by way of
legal punishment, or to defend our lives, and preserve our
property, when it cannot be effected without his destruc
tion. For although in sacrificing the life of man to the
preservation of perishable possessions, there may be
nothing repugnant to strict justice, it is by no means
consonant to the law of charity.
But to justify a punishment of that kind, the person
put to death must have committed a crime, and such a
* The tenth Chapter chiefly containing remarks that have been inter
spersed in other parts of the work, is omitted here. — TRANSLATOR.
(359)
360 HUGO GROTIUS
crime too, as every equitable judge would deem worthy
of death. Points, which it is unnecessary to discuss any
further, as they have been so fully explained in the
chapter on punishments.
III. In speaking of the clamities of war, as a punish
ment, it is proper to make a distinction between misfor
tune and injury. For a people may sometimes be engaged
in war against their will, where they cannot be justly
charged with entertaining hostile intentions.
Upon this subject, Velleius Paterculus observes that
(( to blame the Athenians for revolting, at the time they
were beseiged by Sylla, betrays a total ignorance of
history. For the Athenians always continued so steady
in their attachment to the Romans, that their fidelity
became a proverbial expression. Yet their situation at
that time excused their conduct, overpowered by the
arms of Mithridates, they were obliged to submit to a
foe within, while they had to sustain a siege from their
friends without. ):>
IV. and V. Between complete injuries and pure mis
fortunes there may be sometimes a middle kind of
actions, partaking of the nature of both, which can
neither be said to be done with known and wilful inten
tion, nor yet excused under colour of ignorance and want
of inclination. Acts of pure misfortune neither merit
punishment, nor oblige the party to make reparation for
the loss occasioned. Hence many parts of history supply
us with distinctions that are made between those who
are the authors of a war, and principals in it, and those
who are obliged to follow others, as accessories in the same.
VI. But respecting the authors of war, a distinction
s to be made also, as to the motives and causes of war:
some of which though not actually just, wear an appear
ance of justice, that may impose upon the well meaning.
The writer to Herennius lays it down as the most equi
table vindication of injury, where the party committing
it, has neither been actuated by revenge, nor cruelty;
but by the dictates of duty and an upright zeal.
Cicero, in the first book of his offices, advises the spar
ing of those, who have committed no acts of atrocity
and cruelty in war, and that wars, undertaken to main
tain national honour, should be conducted upon principles
of moderation. And, in one of his letters, adverting to
the war between Pompey and Caesar, he describes the
struggle between those two illustrious men, as involved
THE RIGHTS OF WAR AND PEACE 361
in so much obscurity of motives and causes, that many
were perplexed in deciding- which side to embrace. In
his speech too for Marcellus, he remarks that such uncer
tainty might be attended with error, but could never be
charged with guilt.
VII. Such forbearance in war is not only a tribute to
justice, it is a tribute to humanity, it is a tribute to
moderation, it is a tribute to greatness of soul. It was
in this moderation, says Sallust, the foundation of Ro
man greatness was laid. Tacitus describes his country
men as a people no less remarkable for their courage in
the field, than for their humanity to the vanquished and
suppliant.
On this subject, there is a brilliant passage in the
fourth book to Hcrennius, where it is said, <( It was an
admirable resolution of our ancestors, never to deprive a
captive prince of his life. For it would be truly a viola
tion of common justice to abuse, by wanton cruelty and
rigour, the power over those, whom fortune has put into
our hands, by reducing them from the high condition,
in which she had placed them before; their former en
mity is forgotten. Because it is the characteristic of brav
ery to esteem opponents as enemies, wrhile contending
for victory, and to treat them as men, when conquered,
in order to soften the calamities of war, and improve the
terms and relations of peace. But it may be asked, if
the enemy now treated with this indulgence would have
shewn the same lenity himself. To which a reply may
be made, that he is not an object of imitation in what
he WOULD have done, so much as in what he OUGHT to
have done."
VIII. Though there may be circumstances, in which
absolute justice will not condemn the sacrifice of lives
in war, yet humanity will require that the greatest pre
caution should be used against involving the innocent
in danger, except in cases of extreme urgency and
utility.
IX. After establishing these general principles, it will
not be difficult to decide upon particular cases. Seneca
says, that <( in the calamities of war children are exempted
and spared, on the score of their age, and women from
respect to their sex. }) In the wars of the Hebrews,
even after the offers of peace have been rejected, God
commands the women and children to be spared.
Thus when the Ninevites were threatened with utter
362 HUGO GROTIUS
destruction, on account of their grievous crimes, a miti
gation of the sentence was allowed, in compassion to the
many thousands, who were of an age incapable of mak
ing a distinction between right and wrong.
If God, from whose supreme gift the life of man pro
ceeds, and on whose supreme disposal it depends, pre
scribes to himself a rule like this, it is surely incumbent
upon men, who have no commission, but for the welfare
and preservation of the lives of men, to act by the same
rule. Thus age and sex are equally spared, except where
the latter have departed from this privilege by taking
arms, or performing the part of men.
X. The same rule may be laid down too with respect
to males, whose modes of life are entirely remote from
the use of arms. And in the first class of this descrip
tion may be placed the ministers of religion, who, among
all nations, from times of the most remote antiquity have
been exempted from bearing arms. — Thus, as may be seen
in sacred history, the Philistines, being enemies of the
Jews, forbore doing harm to the company of prophets,
that was at Gaba: and David fled with Samuel to another
place, which the presence of a prophetic company pro
tected from all molestation and injury.
Plutarch relates of the Cretans, that when all order
among them was entirely broken by their civil broils,
they abstained from offering violence to any member of
the priesthood, or to those employed in the sacred rites
belonging to the dead. From hence the Greeks came to
denote a GENERAL MASSACRE by the proverbial expression
Of NO ONE BEING LEFT TO CARRY FIRE TO THE ALTAR.
Equally privileged with the holy priesthood are those,
who devote their lives to the pursuit of letters, and other
studies beneficial to mankind.
XI. Diodorus bestows an encomium upon the Indians,
who, in all their wars with each other, forbore destroy
ing or even hurting those employed in husbandry, as
being the common benefactors of all. Plutarch relates
the same of the ancient Corinthians and Megarensians,
and Cyrus sent a message to the king of Assyria to
inform him that he was willing to avoid molesting all
who were employed in tilling the ground.
XII. To the above catalogue of those exempted from
sharing in the calamities of war, may be added merchants,
not only those residing for a time in the enemy's country,
but even his natural-born, and regular subjects: artisan?
THE RIGHTS OF WAR AND PEACE 363
too, and all others are included; whose subsistence de
pends upon cultivating the arts of peace.
XIII. and XIV. More civilized manners having abol
ished the barbarous practice of putting prisoners to death,
for the same reason, the surrender of those, who stipu
late for the preservation of their lives either in battle,
or in a siege, is not to be rejected.
The Romans, when investing towns, always accepted
offers of capitulation, if made before the battering ram
had touched the walls. Caesar gave notice to the Atu-
atici, that he would save their city, if they surrendered,
before the battering ram was brought up. And in mod
ern times it is the usual practice, before shells are thrown,
or mines sprung, to summon places to surrender, which
are thought unable to hold out — and where places are
stronger, such summons is generally sent, before the
storming is made.
XV. and XVI. Against these principles of natural law
and equity an objection is sometimes derived from the
necessity of retaliation, or striking terror, in cases of
obstinate resistance. But such an objection is by no
means just. For after a place has surrendered, and there
is no danger to be apprehended from the prisoners, there
is nothing to justify the further effusion of blood. — Such
rigour was sometimes practised, where there were any
enormous acts of injustice, or any violation of faith; it
was practised also upon deserters, if taken.
Sometimes, where very important advantages may at
tend striking a terror, by preventing the same crimes in
future from being committed, it may be proper to exer
cise the right of rigour in its full extent. But an obsti
nate resistance, which can be considered as nothing but
the faithful discharge of a trust, can never come within
the description of such delinquencies, as justify extreme
rigour.
XVII. Where delinquencies indeed are such as deserve
death, but the number of offenders is very great, it is
usual, from motives of mercy, to depart in some degree
from the right of enforcing the whole power of the law:
the authority for so doing is founded on the example of
God himself, who commanded such offers of peace to be
made to the Canaanites, and their neighbours, the most
wicked of any people upon the face of the earth, as
might spare their lives upon the condition of their be
coming tributaries.
364 HUGO GROTIUS
XVIII. From the opinions advanced and maintained
above, it will not be difficult to gather the principles of
the law of nature respecting hostages.
At the time, when it was a general opinion that every
one had the same right over his life, as over his property,
and that right, either by express or implied consent was
transferred from individuals to the state, it is not sur
prising that we should read of hostages, though harmless
and innocent as individuals, being punished for the
offences of the state: and, in this case, the consent of
the state to such a regulation implies that of individuals,
who have originally resigned their own will to that of
the public ; in whom, after such resignation, it indubitably
vested.
But when the day-spring rose upon the world, men,
obtaining clearer views of the extent of their power,
found that God, in giving man dominion over the whole
earth, reserved to himself the supreme disposal of his
life, so that man cannot resign to anyone the right over
his own life or that of another.
XIX. By way of conclusion to this subject it may be
observed, that all actions no way conducive to obtain a
contested right, or to bring the war to a termination,
but calculated merely to display the strength of either
side are totally repugnant to the duties of a Christian
and to the principles of humanity. So that it behoves
Christian princes to prohibit all unnecessary effusion of
blood, as they must render an account of their sovereign
commission to him, by whose authority, and in whose
stead, they bear the sword.
CHAPTER XII.
ON MODERATION IN DESPOILING AN ENEMY'S COUNTRY.
Lawfulness of despoiling an enemy's country — Forbearance of using
this right, where things may be useful to ourselves, and out of an
enemy's power — Forbearance in the hopes of speedy conquest, or
where things are not immediately necessary to support an enemy,
and aid him in maintaining the war — Buildings for the purposes of
religion not to be wantonly destroyed — Advantages of this mod
eration.
I. ONE of the three following cases is requisite to jus
tify any one in destroying" what BELONGS to another:
there must be either such a necessity, as at the original
institution of property might be supposed to form an ex
ception, as if for instance any one should throw the sword
of another into a river, to prevent a madman from using
it to his destruction: still according to the true principles
maintained in a former part of this work he will be bound
to repair the loss:* or there must be some debt, arising
from the non-performance of an engagement, where the
waste committed is considered as a satisfaction for that
debt: or there must have been some aggressions, for
which such destruction is only an adequate punish
ment.
Now, driving off some of our cattle, or burning a few
of our houses, can never be pleaded as a sufficient and
justifiable motive for laying waste the whole of an enemy's
kingdom. Polybius saw this in its proper light, observ
ing, that vengeance in war should not be carried to its
extreme, nor extend any further than was necessary to
make an aggressor atone justly for his offence. And it
is upon these motives, and within these limits alone, that
punishment can be inflicted. But except where prompted
to it by motives of great utility, it is folly, and worse
than folly, wantonly to hurt another.
But upon duly and impartially weighing the matter,
such acts are oftener regarded in an odious light, than
considered as the dictates of prudent and necessary
* See b. ii. chap. ii. sect. 9,
(365)
366 HUGO GROTIUS
counsels. For the most urgent and justifiable motives
are seldom of long continuance, and are often suc
ceeded by weightier motives of a more humane descrip
tion.
II. It may be possible, under some circumstances, to
detain what belongs to an enemy, so as to prevent his
deriving advantage from it, in which case it would be an
unnecessary and wanton act to destroy it. And to such
circumstances the divine law has an eye, in ordering
wild trees to be made use of for the construction of
works in a siege, while fruit-trees, and every thing neces
sary for the support of man, ought, if possible, to be
spared.
III. Where there is an expectation also of speedy
victory and conquest, prudence will dictate to a general
or commander of any kind the necessity of forbearing
from all acts of destruction, by authorising and com
mitting which he would only be injuring those posses
sions, that are likely to come into the hands of his own
state or sovereign. Thus, as we are informed by Plu
tarch, when Philip had overrun Thessaly, destroying and
plundering the whole country, Flaminius ordered his
troops to march in a regular manner, as through a ceded
country which had become their own.
IV. In the next place, it is unnecessary to destroy an
enemy's country, when he has other sources, from which
he can draw his supplies, as for instance, the sea or any
adjoining territory. Archidamus, in Thucydides, attempt
ing to dissuade the Lacedaemonians from a war with the
Athenians, asks them, what object they propose to them
selves by such a war ? he asks them if they suppose that
Attica can easily be laid waste owing to the advantage,
which their troops have in superiority and numbers ? but,
says he, they have other dominions to furnish them with
supplies, and they can avail themselves also of maritime
importations. So that under such circumstances, it is
best to leave agriculture unmolested, even on the fron
tiers of each side : a practice lately followed in the wars
of the low countries, where contributions were paid to
both parties, in return for such protection.
V. There are some things of such a nature, as to con
tribute, no way, to the support and prolongation of war:
things which reason itself requires to be spared even dur
ing the heat and continuance of war. Polybius calls it
THE RIGHTS OF WAR AND PEACE 367
brutal rage and madness to destroy things, the destruction
of which does not in the least tend to impair an enemy's
strength, nor to increase that of the destroyer: Such are
Porticos, Temples, statues, and all other elegant works
and monuments of art. Cicero commends Marcellus for
sparing the public and private edifices of Syracuse, as if
he had come with his army to protect THEM, rather than
to take the place by storm.
VI. As this rule of moderation is observed towards other
ornamental works of art, for the reasons before stated,
there is still greater reason, why it should be obeyed in
respect to things devoted to the purposes of religion.
For although such things, or edifices, being the property
of the state may, according to the law of nations, be with
impunity demolished, yet as they contribute nothing to
aggravate the calamities, or retard the successes of war, it
is a mark of reverence to divine things to spare them, and
all that is connected therewith: and more especially
should this rule be adhered to among nations, worship
ping the same God according to the same fundamental
laws, although differing from each other by slight shades
of variation in their rights and opinions. Thucydides
says that it was a law among the Greeks of his time, in
all their invasions of each other's territories, to forbear
touching the edifices of religion: and Livy likewise ob
serves that, upon the destruction of Alba by the Romans,
the temples of the Gods were spared.
VII. What has been said of the sacred edifices of re
ligion applies also to monuments raised in honour of the
dead, unnecessarily to disturb whose ashes in their repose
bespeaks a total disregard to the laws and ties of our
common humanity.
VIII. Although it does not fall within the province of
this treatise to inquire into the utility of war in all its
various branches, but only to regulate its practices by
confining them within due and lawful bounds; yet it
will not be improper to observe that rules and practices
derive much of their merit from the utility, with which
they are attended. So that one great quality, to recom
mend the moderation above alluded to, will be found in
its preventing the enemy from being driven to those re
sources, which men never fail, at last, of finding in
despair. It is a just remark made by some Theologians,
that all CHRISTIAN princes and rulers, who wish to be
368 HUGO GROTIUS
found SUCH in the sight of God as well as that of men,
will deem it a duty to interpose their authority to pre
vent or to suppress all UNNECESSARY violence in the taking
of towns : for acts of rigour can never be carried to an
extreme without involving great numbers of the innocent
in ruin. And practices of that kind, besides being no
way conducive to the termination of war, are totally re
pugnant to every principle of Christianity and justice.
CHAPTER XIII.
ON MODERATION IN MAKING CAPTURES IN WAR.
Effects belonging to the subjects of an enemy, and taken detained as a
pledge or debt — Not to be taken by way of punishment for another's
offence — The debt or obligation, arising from a state of war, illus
trated by examples — Forbearance in the exercise of such a right from
principles of humanity.
I. THE capture of an enemy's goods, even in JUST WAR,
is not, in ALL CASES, perfectly justifiable, nor is the captor
always exempt from the ties of restitution. For strictly
speaking, according to the rules of pure justice, it is not
lawful to seize or detain goods except to the exact amount
of the debt which the enemy has incurred. Indeed goods
may be detained beyond that, as a necessary pledge of
security, but still upon the condition of being restored, as
soon as the danger has ceased: RESTORED EITHER LITERALLY,
OR BY SOME PROPER COMPENSATION BEING MADE.
Here then is a right of capture, which confers no right
of property or acquisition. But when any thing may be
come due to us, either from a penalty or the non-per
formance of an engagement, in both cases a right to an
enemy's .goods, if they can be taken, is acquired. By the
latter kind of debt not only the effects of the debtor
himself, but those, belonging to his subjects, may accord
ing to the principles introduced by the law of nations be
taken as a security.
This right of the law of nations is very different from
that established in impunity alone, or depending upon
the external force of judicial authority. For as by our
private consent the person with whom we contract ac
quires not only an external and legal right over our
property, but an internal right, proceeding from con
science, so he acquires the same right by a kind of
common consent, which virtually comprehends the con
sent of individuals, in which sense the law is called the
common compact or covenant of the state.
And in transactions of this kind it is most likely that
nations approving of such a rule, introduced a law, which
24 (369)
370 HUGO GROTIUS
might not only prevent greater evils, but also enable
every one to attain his own right.
II. But in the other kind of debt arising from penalty,
or punishment, it does not appear, that nations consented
to the establishment of any such right over the effects
of subjects. For binding the property of one man for
the offence of another is a kind of odious act, and there
fore ought not to be extended farther than the law
appears to have actually decreed. Nor is the advantage
derived from the latter, by any means equal to that
attending the former kind of debt. For what is due to
us from damage, or the non-performance of a treaty may
be considered as a part of our effects, but it is not so
with the obligation to punishment, which is purely of a
personal nature, therefore no loss is incurred by relin
quishing this right.
Nor is the argument in the least weakened by what
was said before * respecting the Athenian law. For there
it was maintained that subjects were not bound to suffer,
because the state was amenable to punishment, but in
order to compel the state to do what she ought to do,
in bringing the guilty to punishment: a debt arising
from duty, and relating to obligations of the former kind,
rather than to those of the latter. For there is a differ
ence between being obliged to punish another and being
one's self amenable to punishment: tho' the latter may
frequently arise from the neglect of doing the former,
but still there is the same distinction between them, as
between cause and effect.
The goods of subjects can only be taken by way of
reprisal in return for other goods taken by the enemy;
but they can never be taken as a punishment for the
neglect of bringing offenders to justice. The delinquents
themselves, in the number of whom may be reckoned
those, who have neglected to discharge their duty in this
respect, must answer for such offences.
III. The goods of subjects may be taken, and a prop
erty acquired therein, not only in order to obtain pay
ment of the ORIGINAL debt, which occasioned the war,
but of OTHER debts also, to which the same war may
have given birth. And in this sense the words of those
are to be taken, who maintain, that captures in war are
not a perfect compensation for the principal debt, but
only used as a means to enforce satisfaction for the
*See b. iii. ch. ii. of this work.
THE RIGHTS OF WAR AND PEACE 371
damages sustained from aggressions. Thus the Romans,
in their dispute with Antiochus, as related by Livy,
thought it but right for that king to make reparation for
all the expenses incurred in the war, which he had oc
casioned. Indeed any terms, that may be justly imposed
upon the conquered may justly be enforced by war.
IV. The right of seizing the goods of the innocent sub
ject of an enemy seems to have been introduced, in order
to compel the original aggressor, or debtor to grant
redress for the injury he had done: and although his
falling on the innocent may be no way repugnant to
what is legally right, it is in some measure a departure
from the principles of humanity. On the other hand,
history, especially the Roman history, abounds in ex
amples of humanity, where lands have been restored to
a conquered enemy, upon condition of their belonging to
the STATE, and becoming subject to the payment of a
tribute,
CHAPTER XV.*
ON MODERATION IN ACQUIRING DOMINION.
How far internal justice permits us to acquire dominion — Moderation,
in the use of this right over the conquered, laudable — Incorporat
ing them with the conquerors — Allowing them to retain their
dominions — Placing garrisons therein — Imposing tributes or other
burdens — Utility of such moderation — Change in the form of a
conquered government — The conquered permitted to retain some
part of their former liberties — Especially in matters of religion —
Clemency to be shewn.
I. THAT equity and moderation towards individuals,
which are so highly extolled, are still more deserving of
admiration, when exercised towards nations and king
doms; where injustice would be attended with more signal
calamities, and moderation with more beneficial effects.
In just war the right of dominion over a people, and
the sovereign power, which that people possess, may be
acquired as well as any other right. But the claims to
such a right ought by no means to be prosecuted be
yond indemnity for aggression, and security against
future evils.
But this motive, so necessary to be observed, espe
cially in all treaties of peace, as well as in the use of
victory, is often confounded with others. In other points
a sovereign prince or state may relinquish a claim from
a principle of moderation, but where the future security
of their subjects is concerned, it is an act of cruelty
rather than of moderation to relax too far in favour of
a conquered enemy.
II. Aristotle has, more than once, said, that war is
undertaken for the sake of peace, and toil endured in
order to obtain rest. And in the same manner, Cicero
has observed, that men go to war, that they may live in
peace without molestation and injury. War too, as we
are instructed by the teachers of true religion, may be
made, to remove every thing that interrupts, and stands
in the way of peace.
*The translation proceeds from the XIII. to the XV. Chapter of
the original. — TRANSLATOR.
(372)
THE RIGHTS OF WAR AND PEACE 373
In the primitive ages, as we find from history, wars in
general were made to preserve territories rather than to
extend them. And any deviation from this rule was
thought unlawful: thus the prophet Amos reproves the
Ammonites for their love of making conquests.
III. The prudent moderation of the ancient Romans
approaches nearly to this model of primitive innocence.
For although they made conquests, they mitigated the
fate of the conquered by incorporating them with them
selves.
IV. Another mark of moderation in the use of victory
is leaving to conquered kings, or nations the dominions,
which they LAWFULLY held before.
Polybius highly extols the merit and wisdom of Antig-
onus, who, having Sparta in his power, allowred the
inhabitants to retain their national polity and freedom.
V. Sometimes indeed a conqueror, though allowing a
subjugated people to retain their dominion and sov
ereignty, must provide for his own security, by placing
garrisons in their country.
VI. Contributions too are frequently imposed and
levied, not so much by way of indemnity for expences
incurred, as for a future security between the conqueror,
and the conquered country. Upon the same principle, as
was before * observed, in explaining the nature of un
equal treaties, conditions may be imposed also requiring
a conquered power to deliver up a certain number of her
ships and forts, and to reduce her troops to a limited
number.
VII. But leaving to conquered powers a part or the
whole of their dominions is not only sometimes an act
of justice and humanity, but an act of sound policy also.
Among other of Numa's institutions, his manner of cele
brating the rites of TERMINUS, the DEITY OF BOUNDARIES,
is much commended; for he prohibited the use of blood
in those ceremonies, as an intimation that nothing was
more conducive to the peace and harmony of the world,
than for every nation to confine herself within her proper
bounds.
In conformity to which maxim Florus observes, that it
is more easy to make conquests than to keep them. To
which rule Plato, in his third book of Laws, adapts the
proverbial expression of Hesiod, that HALF is BETTER
THAN THE WHOLE.
* B. ii. ch. xv. sect. 7.
374 HUGO GROTIUS
VIII. The Lacedaemonians and the Athenians anciently
claimed no farther dominion over conquered cities and
states, than purely wishing them to adopt forms of gov
ernment like their own, the Lacedaemonians living under
an aristocratic, and the Athenians under a democratic
system. But whether such changes were conducive to a
conqueror's security, it is not to our present purpose to
examine.
IX. If it is not perfectly safe to forbear exercising ANY
dominion over a conquered enemy, the matter may be so
regulated as to leave him some portion of his former
sovereignty and power. Thus among the Jews the scep
tre remained with the Sanhedrim, even after Archelaus
was deprived of his kingdom ; and Alexander in many
cases allowed Darius to remain a sovereign over others,
while he required of him submission to himself.
X. Even though a conquered power was deprived of
all sovereignty, she might be allowed to retain some of
her laws, privileges, and magistracies of inferior impor
tance. Thus, Pliny, in his letters, informs us, that in the
proconsular province of Bithynia, the city of Apamaea
was allowed to regulate the form of her government
at her own pleasure, and, in other places, the Bithynians
were permitted to retain their own magistrates, and their
own senate.
XI. This indulgence ought to be shewn to every peo
ple, especially in their attachment to the religion of their
forefathers, of which they should never be deprived but
with their own consent and conviction. An indulgence,
which Agrippa in his address to Caius, as cited by Philo
in the account of his embassy, approves of, as highly
grateful to the conquered people, and by no means prej
udicial to the conqueror. At the same time a conqueror
will take care that erroneous opinions do not prevail to
the prejudice and overthrow of true religion, as was done
by Constantine upon his crushing the party of Licinius,
and afterwards by the Franks and other kings.
CHAPTER XVI.
ON MODERATION WITH RESPECT TO THINGS EXCLUDED
FROM THE RIGHT OF POSTLIMINIUM BY
THE LAW OF NATIONS.
Internal justice requires the restitution of things taken from others by
an enemy in unjust war — Deductions made — Subjects and coun
tries, if unjustly seized by an enemy, to be restored to their original
sovereign — The time, when the obligation to restore them expires,
defined — What is to be done in doubtful cases.
I. How far things taken in just war become the prop
erty of the captors has been explained before. From
which a deduction must be made of things recoverable
by the right postliminium, those being no captures at all.
But things, taken in unjust war, are to be restored,
not only by those, who have taken them, but by others
also into whose hands they may have by any means fallen.
For, as the Roman lawyers say, no one can convey to
another a greater right than he himself possesses. The
original captor had no just title to any property therein,
neither can the person, deriving his title through him,
establish any better claim. — A SECOND or THIRD possessor
may have acquired a property therein, which the law
presumes he has a right to, till the contrary be shewn,
and for which an action may be maintained. Yet it is a
right of which he cannot honestly avail himself against
the real owner, from whom it was unjustly taken.
II. and III. Therefore such things are to be restored
to those, from whom they were taken, which we find in
ancient times was often done. Livy in relating the de
feat of the Volscians and Aequi by a Roman Consul,
says that the booty was exposed in a public place, for
the space of three days, that every one, coming to rec
ognise what belonged to him, might take it away.*
*^The difficulty of recognising things of this nature, and the endless
disputes, which would arise from the prosecution of the owner's claims
to them, have been deemed motives of sufficient weight for the estab
lishment of a contrary practice. It is therefore with reason, that move-
ables or booty are excepted from the right of postliminium, unless
retaken from the enemy immediately after his capture of them ; in which
case the proprietor neither finds a difficulty in recognising his effects,
nor is presumed to have relinquished them.» — Vattel b.iii.ch.xiv.sect. 209.
(375)
376 HUGO GROTIUS
But if any one has become possessed of such a thing
by purchase, it may be asked, if he can charge the per
son from whom it was originally taken, with the price
which he has paid for it ? According to the principles
before * laid down, he certainly may charge as much to
the person losing it, as the repossession of a thing, which
he despaired of ever recovering, is worth.
The history of Abraham seems applicable to this sub
ject, when he returned from his victory over the five
kings. Being a man of noble and exalted piety, he would
appropriate nothing to himself, but considering the things
retaken, as his own right, in recompence for his labour
and danger, he devoted a tenth part to God, after de
ducting the necessary expences, and divided a certain
portion among his companions.
IV. As THINGS are to be restored to their original own
ers, so SUBJECTS are to be restored to their former lawful
sovereigns.
V. The period also, when the obligation to restitution
expires, is often a subject of inquiry. But this is a ques
tion, when arising between subjects of the same kingdom,
which must be settled by the municipal laws of that
country: but when the contending parties are the subjects
of foreign powers, the matter can only be decided upon
a conjecture of the time sufficient to constitute a pre
sumed dereliction of property.
VI. But where the right of war is doubtful, it will be
safest to follow the conduct of Aratus of Sicyon, in ad
vising the new possessors in some measure to prefer
taking a sum of money in lieu of the possession, and
recommending the same maxim to the original owners,
to prefer a sum of money, if they could obtain it, equiv
alent to the recovery of their right.
*B. ii. ch. x. sect. 9.
CHAPTER XVII.
RESPECTING THOSE WHO ARE NEUTRAL IN WAR.
Nothing to be taken belonging to neutrals, but under circumstances of
extreme necessity, and with an intention to pay the full price of
it — Conduct of neutral powers towards belligerents.
I. IT MAY appear superfluous to speak of neutral
powers, against whom no rights of war can exist. But
as war, under the plea of necessity, occasions many
aggressions to be committed against them, especially
when bordering upon the seat of its operations, it may
be necessary briefly to repeat a former assertion, that
nothing short of extreme exigency can give one power
a right over what belongs to another no way involved
in the war. The case too is equally clear that no emer
gency can justify any one in taking and applying to his
own use what the owner stands in equal need of him
self. But even where the emergency can be plainly
proved, nothing can justify us in taking or applying the
property of another to our use, beyond the IMMEDIATE DE
MANDS OF THAT emergency. Where the CUSTODY of a
thing, by securing it, is sufficient for the purpose, the
USE and CONSUMPTION of it is absolutely unlawful. If the
USE of it is necessary, it must not be AIJUSED: and if
the entire ABUSE of it be requisite, the full value should
be paid.
II. Again, according to what was said in a preceding
part of this book, it is the duty of those, who profess
neutrality in a war to do nothing towards increasing the
strength of a party maintaining an unjust cause, nor to
impede the measures of a power engaged in a just and
righteous cause. But in doubtful cases, they ought to
shew themselves impartial to both sides, and to give no
succour to besieged places, but should allow the troops
of each to march through the country, and to purchase
forage, and other supplies. The Corcyraeans, in Thucyd-
(377)
378 HUGO GROTIUS
ides, say that if the Athenians intend to remain neuter,
they ought either to prohibit the Corinthians from en
listing men in the territory of Attica, or to give THEM
the same privilege. The Romans objected to the con
duct of Philip king of Macedon, charging him with a
double violation of treaties, both by injuring the allies
of the Roman people, and assisting the enemy with
supplies of men and money.
CHAPTER XIX.*
ON GOOD FAITH BETWEEN ENEMIES.
Good faith due to enemies of every description — Due even to
pirates, and others of the same kind, in all treaties with them —
A promise given to them, binding, when not extorted by fear
— Oaths to be inviolably observed — The law of nations does not
allow fear to be alleged as an exception to the above rules —
Good faith to be observed even to a treacherous enemy — This
obligation ceases, where one of the parties violates his engage
ments — Or refuses a just compensation — Even where the obliga
tion arose from a different contract — From loss occasioned — Or
from a penalty — Application of these principles to war.
I. IT WAS before said that the number and extent of
actions, lawful in war, may be considered either upon
their own intrinsic merits, or as rising out of some ante
cedent engagement. The former point having before
been fully explained, this is the proper place for discuss
ing the latter, which comprehends the good faith of
enemies towards each other.
Cicero, in his fifth book on the bounds of good and
evil, has well observed that every one must approve and
commend a disposition to adhere faithfully to our engage
ments not only from disinterested motives, but in some
cases even in opposition to our own interest. And Aug
ustine says that it is right to maintain the pledge of faith
given to an enemy, for under the character of enemies
men do not lose their right to the fulfilment of a promise,
a right which every one possessed of reason is capable of.
It is the power of reason and speech from which the
obligation of promises springs. Nor is it to be supposed
that, because it is lawful to deceive an enemy on some
occasions, the same rule will authorise a violation of
faith in engagements. For the obligation to speak the
truth arises from causes antecedent in their existence to
any state of warfare, and they are causes which a state
of warfare may render it necessary to change or abridge.
But a promise confers a new right of itself. A distinc
tion which did not escape the notice of Aristotle, who,
*The translation proceeds from the xviith to the xixth chapter of
the original. — TRANSLATOR.
(379)
380 HUGO GROT1US
in speaking of truth, says that he does not consider
truth and sincerity in engagements, with relation to jus
tice or injustice, but as belonging to another class of
virtues.
II. As to engagements with pirates, we may observe,
that Pompey in a great measure concluded the disputes
with them by treaty, sparing their lives, and allowing
them places to reside in, on condition of their abandon
ing their former way of life. The law of nations indeed
has not established the same mode of communication
with them, as among regular enemies in just and lawful
war: but still the very circumstance of their being MEN,
entitles them to those privileges which are sanctioned by
the law of nature, among which the observance of en
gagements is one.
III. Let us consider if a more specious argument than
Cicero's may not be devised on this subject. — In the first
place it may be stated that atrocious malefactors, forming
no part of a state, may be punished by any one what
ever, according to the law of nature. For those, who
may be punished with death, may upon the same princi
ple be deprived of their property and all their rights.
And among rights may be enumerated the right of
requiring a fulfilment of promises and engagements: the
guilty may therefore be deprived of this right by way
of penalty. In reply to which it may be said, this will
certainly be the case, if the person is treated with, but
not as a malefactor: for the very act of treating with
him shews that he is not considered any longer in that
light, but as one entitled to all the rights of treaty, the
criminal part of his character not being taken into the
account, all penalties on that score being, as it were re
mitted. For every act of treaty must be interpreted so
as to avoid absurdity.
IV. An objection to treating with pirates upon princi
ples of good faith is deduced from their calling, which
is to extort terms by fear. Now where a promise has
been extorted, the promisor is released from his engage
ment, as having unjustly sustained a damage, by an act
repugnant to the nature of human liberty, and to the
nature of human action, which ought to be free.
This, it must be admitted, may sometimes happen, but
does not apply to all promises made to pirates. For to
make the person, to whom a promise has been given,
liable to release the engagement, the promiser himself
THE RIGHTS OF WAR AND PEACE 381
must have been forced to give the promise under im
pressions of unjust fear. So that if any one has prom
ised a ransom in order to redeem a friend from captivity,
he will be bound by his promise. For in this case there
was no impression of fear, as he came voluntarily to
make the contract.
V. A promise too made through the compulsion of fear
will be binding, where it has been ratified by the solemn
sanction of an oath: for in that case it is not only one
man making an engagement to a fellow creature, but
binding himself to God by the most solemn appeal :
against which neither fear nor any other motive can form
an exception. Yet the heir of a promisor is not bound
by any such obligation: because inheritances pass accord
ing to the rules of human intercourse established at the
original institution of property: but the divine right to
the fulfilment of oaths, as such, is not included in these.
From the above arguments a conclusion may be deduced,
that if any one violates a pledge given to such an enemy
either upon oath or without oath, he will not on that
account be liable to punishment among other nations,
because from the general horror which piracy excites,
nations have thought proper to pass over without notice
the violation of rules of faith towards them.
XL* Solemn war, signifying such as is proclaimed
and begun on both sides by authority of the sovereign
or state, among its many other legal rights, includes
also that of giving validity to every promise, which may
be conducive to its termination, so that if either party,
through an ill-grounded fear of further calamities, has,
even against his will, made promises unfavourable, or
acceded to terms disadvantageous to himself, such an
engagement will be binding. For the law of nations
allows belligerent powers to alarm each other, if possible,
into submission upon the most unequal terms, in the
same manner, as it gives a sanction to many things not
strictly equitable according to natural and municipal law.
For if such a practice had not been established, wars,
which are so frequent, could never have been brought to
a conclusion, an object so much for the interest of man
kind.
These are the rights of war which Cicero says ought
to be inviolably preserved with an enemy : for an enemy
*Sections VI, VII, VIII, IX and X of the original are omitted in the
translation. (Translator.)
382 HUGO GROTIUS
not only retains his natural rights in war, but certain
other rights originating in the consent of nations. Yet
it does not follow from hence that any one, who has
extorted such a promise in unjust war, can, consistently
with piety and the duties of a good man, retain what he
has so received, nor can he compel another to stand to
such engagements, whether upon oath, or not. For the
natural and internal injustice of such a promise always
remains the same, nor can the injustice be removed or
altered, till it has received a new and free concurrence
from the party, by whom it was given.
XII. The only impressions of fear, that can be lawfully
inspired in regular war, are those which are approved of
by the law of nations. Thus no one can avail himself
of a promise, extorted from an ambassador under im
pressions of fear excited by the seizing of his person.
XIII. and XIV. There are two cases, in which a per
son may not perform his engagement or promise, with
out being guilty of treachery: and those are, where the
conditions have not been fulfilled, or some compensation
has been made. For in one and the same treaty all the
clauses seem connected with each other, as a kind of
condition expressing the intention of one party to fulfil
his engagement, if the other shall do the same. There
fore Tullus, in replying to the Albans invokes destruction
upon the head of that people who first rejected the just
claims of ambassadors demanding restitution, wishing
that all the calamities of war might fall upon them.
For, says Ulpian, he shall no longer be held as a con
federate, who has renounced a treaty, owing to some
condition, on which it was made, not being fulfilled. For
which reason, wherever it is intended otherwise, it is
usually stated in express terms, that the violation of any
particular clause shall not annul the whole treaty.
XV. The origin of compensation was explained in the
second book of this treatise,* where it was said to be the
power and right of receiving an equivalent, for some
thing belonging to us, which is in the hands of another,
or any thing due to us, which we cannot otherwise
obtain: and much more then have we a right on the
same account to detain any thing which is ALREADY IN
OUR POWER, whether it be of a corporeal or an incor
poreal kind. So that we are not obliged to perform a
promise, if it be no more than equivalent to a thing of
*B. ii. ch. vii. sect. 2.
THE RIGHTS OF WAR AND PEACE 383
ours which the other party detains. Seneca, in his sixth
book ON BENEFITS, says that a creditor often becomes
under an obligation to his debtor, if he takes more than
an equivalent for his debt. For though it may be
granted that he has lent money, yet if by such a loan he
has obtained the possession of lands, which he never
bought, he changes situations with his debtor, and be
comes a debtor in his turn.
XVI. It will be the same, if one of the contracting
parties owes as much, or more, from some other engage
ment : and the debt cannot otherwise be obtained, than
by taking advantage of the present contract, though it
has no connection with the former debt. But in a LEGAL
point of view, all actions are perfectly distinct, nor can
their forms, their grounds, or their substance be con
founded; but certain cases are confined to certain laws,
to which it is necessary invariably to adhere: one law
cannot be mixed with another, but every one in the prose
cution of a right must tread upon invariable and beaten
ground. But the law of nations does not regard such
distinctions, it allows us to transgress them where there
is no other means of obtaining our right.
XVII. and XVIII. The same may be said too, where
the party exacting a promise, has not contracted any
debt by engagement, but has done an injury to the
promiser. And whatever is due by way of punishment
may be balanced against a promise.
XIX. If while a law-suit is depending, the parties enter
into an agreement of any kind, either to pay the costs,
or to make good other damages, they cannot avail them
selves both of this agreement, and claim a further com
pensation for the original matter in dispute. In the same
manner, if during the continuance of a war the bellig
erents negotiate for a conclusion of the original dispute,
they are supposed thereby to settle every cause of hos
tility, nor can they any further avail themselves of the
rights of war, so as to enjoy both the advantages of
them, and of negotiation, at the same time. For if this
were the case, no treaties could ever be enforced with
certainty.
It may be asked, of what nature are the things for
which a promise of compensation should be given ? In
answer to which it may be observed, that such a prom
ise or engagement may be made in lieu of some other
obligation incurred during the course of a war: as for
384 HUGO GROTIUS
instance, where the breach of a truce has been commit
ted, the rights of an ambassador violated, or any other
action done, repugnant to the principles established by
the law of nations among belligerent powers.
Still it must be observed that the parties, in making
compensation, should abstain with the utmost caution
from infringing upon the rights of a third person, es
pecially where this can be done without abandoning the
principles of the law of nations, which makes the effects
of subjects answerable for the debts of the state. Besides
it is the mark of a dignified mind to adhere to engage
ments even after receiving an injury. On which account
the Indian sage Jarchas commended that king, who on
sustaining an injury from a neighbouring and confeder
ate power, said he should not think himself released
from his sworn engagements, which were solemn acts,
that no injustice on the part of another could repeal.
Almost all questions relating to pledges of faith given
by one belligerent power to another, may be solved upon
the principles before laid down, in explaining the nature
and force of promises in general; of oaths, treaties, and
conventions, and also in explaining the rights of the ob
ligations of kings, and the method of interpreting doubt
ful points. But in order to remove every doubt and
difficulty, perhaps a brief discussion of the most usual
and practical topics of negotiation will not be deemed
tedious.
CHAPTER XX.
ON THE PUBLIC FAITH, BY WHICH WAR is CONCLUDED;
COMPRISING TREATIES OF PEACE, AND THE NA
TURE OK ARBITRATION, SURRENDER
HOSTAGES, PLEDGES.
In monarchies the power of making peace a royal prerogative — In
aristocracies and democracies, this right belongs to a greater number
of persons — In what manner the public dominions or any part of
them may be alienated — How far a peace concluded by the king
binds the state, or his successors — Property of individuals ceded for
the benefit of the state at the time of making peace — Indemnity to
those individuals — Losses sustained in war — No distinction between
things acquired according to the law of nations and the civil law —
Transactions of the sovereign with foreign nations deemed valid
from motives of public utility — General rule of interpreting the
terms of peace — In doubtful cases the former state of things sup
posed to be continued by a treaty of peace — Things restored to the
state they were in before the war — Independent states, voluntarily
joining one of the belligerent powers cannot claim indemnity of the
other — General amnesty — Private debts subsisting before the war
not included therein — Restoration of captures — Rules respecting
such restorations— Dubious points to be interpreted to the prejudice
of the party dictating the terms — Distinction between new causes of
war, and the breach of a peace — Rupture by any act contrary to the
terms of peace in general — Infraction of a treaty by allies or subjects
— Violation of a particular treaty — Heads of treaties — Penalties
annexed — Unavoidable impediments to the fulfilment of a treaty —
Peace continued at the option of the injured party — Relations of
amity — How far receiving subjects and exiles may be considered as
a breach thereof — Victory — War concluded by arbitration — Arbi
trators bound by rules of strict justice — Absolute, and conditional
surrender — Hostages can be detained for no other than the express
cause for which they were given — Released by the death of the
party for whom they were given — Obligation of pledges — Right of
redeeming them lost.
I. Good faith, either expressed or implied, must be the
foundation of every treaty between hostile powers. And
again the faith that is expressed is either of a public or
a private nature, and the pledges given either by the sov
ereign, or inferior authorities in states constitute the
public faith. It is, by such pledges given on the part of
the sovereign power alone, that peace can be concluded,
or the rights of war enforced. In the termination of
25 (385)
386 HUGO GROTIUS
every war, either the principal, or accessory causes are to
be considered. Treaties are in general regarded as the
principal instrument, by which wars are ended, and the
mediation, or decision of a third person or power is
deemed a secondary or accessory means.
II. The person, who has authority to begin a war, is the
only one to whom the right of making peace can properly
belong, according to the general maxim, that every one
is the best judge in the management of his own affairs.
From hence it follows, that public war can be made by
the sovereign power alone on each side : a right which in
every kingly government is very justly vested in the
crown.
III. and IV. In popular or aristocratic forms of govern
ment, the right of making war, or concluding peace, is
generally lodged in some public council or body, where a
majority of voices may form treaties, conventions, or
resolutions, which will be binding upon the dissentient
part of such council. And all who are bound by a peace,
whether approving it or not are entitled to its benefits.
V. In examining those objects, which form the most
material part of treaties, we may observe, that kingdoms
are not so much a patrimony, which may be alienated at
pleasure, as a trust, placed in the hands of the sovereign
for the benefit of his people. Indeed kings themselves are
aware of this, even before the crown descends upon their
heads, and they receive it upon condition of adhering to
such sacred obligations.
Nor can such alienations ever be made, so as to be
attended with consequences like those of private contracts,
or to render the goods and effects of subjects answerable
for such engagements. For if that were the case, the
fundamental laws of the kingdom, prohibiting such alien
ations, would be of no effect.
To render the alienation of the whole public dominion
valid, the consent of the constituted authorities of the
state is requisite. And indeed to confirm the transfer of
any particular portion, the consent of the whole body as
well as of that particular member will be necessary: for
otherwise such alienation would be like the violent sep
aration of a limb from the natural body.
A whole people may in a case of extreme necessity
transfer themselves to the dominion of another, a right
which undoubtedly was reserved at the original formation
of society.
THE RIGHTS OF WAR AND PEACE 387
Neither is there any thing to prevent a king from alien
ating his patrimonial and private possessions. Yet there
may be parts of the royal dominion, which the sovereign
cannot alienate from the crown, especially, if he has re
ceived it upon condition of making no personal appro
priation of any thing belonging thereto.
There are two ways in which the possessions of the
crown may become the patrimony of the king, either as
separable or inseparable parts of the kingdom. In the
latter case they can only be transferred with the king
dom itself, but in the former, they may be alienated by
themselves. And where the crown is not patrimonial
and hereditary, the restrictions upon the sovereign in this
respect are much greater.
VI. A nation and a king's successors are bound by his
engagements, in proportion to the power, which he de
rives from the constitution, of making such engagements.
For though this power may not be absolutely unlimited,
yet it ought not to be clogged with unnecessary restric
tions. It should be such as may enable him to exercise
his discretion and judgment on proper occasions for the
benefit of his people.
The case will be different, where a king's power over
his subjects is like that of a master over his household,
more than of a sovereign over his state, as where he has
entirely subjugated a people, or where his controul over
their property is absolute. Thus Pharaoh purchased all
the land in Egypt, and others have admitted strangers
into their territories allowing them to hold lands upon
such conditions. For here, there is another right in addi
tion to that of a sovereign, and it is a right, which sover
eignty alone without conquest could never have conferred.
VII. The right of sovereigns to dispose of the effects
of individuals, in order to make peace, is often a disputed
point, nor can they exercise this right over the property
of subjects in any other manner than as sovereigns.*
The property of subjects is so far under the eminent
* « The necessity of making peace authorises the Sovereign to dispose
of the property of individuals ; and the eminent dominion gives him a
right to do it. Every thing in the political society ought to tend to the
good of the community ; and since even the powers of the citizens are
subject to this rule, their property cannot be excepted. The state could
not subsist, or constantly administer the public affairs in the most ad
vantageous manner, if it had not a power to dispose occasionally of all
kinds of property. » — Vattel, b. iv. ch. ii. sect. 12. ibid. b. i. ch. xx.
sect 244.
388 HUGO GROTIUS
controul of the state, that the state or the sovereign who
represents it, can use that property, or destroy it, or
alienate it, NOT ONLY IN CASES OF EXTREME NECESSITY, which
sometimes allow individuals the liberty of infringing upon
the property of others, but on all OCCASIONS, where the
public good is concerned, to which the original framers
of society intended that private interests should give way.
But when that is the case, it is to be observed, the state
is bound to repair the losses of individuals, at the public
expence, in aid of which the sufferers have contributed
their due proportion. Nor will the state, though unable
to repair the losses for the present, be finally released
from the debt, but whenever she possesses the means of
repairing the damages, the dormant claim and obligation
will be revived.
VIII. There must be some hesitation in admitting the
opinion of Ferdinand Vasquez, who maintains that the
state is not bound to repair the losses, which are occa
sioned to individuals in the course of war, as those are
accidents permitted by the rights of war.
For those rights regard the relation of foreign states
and enemies to each other, but bear no reference to the
disputes of subjects among themselves, who, being united
in the same cause, ought to share the common losses,
which happen to them in supporting the privileges of
their society. It is a rule likewise established by the
civil law, that no action can be brought against the state
for the losses sustained in war, as every one is thereby
induced to defend his own property with more earnest
ness and spirit.*
*<(Some damages are done deliberately and by way of precaution,
as when a field, a house, or a garden, belonging to a private person,
is taken for the purpose of erecting on the spot a tower, rampart, or
any other piece of fortification, — or when his standing corn, or his
storehouses are destroyed, to prevent their being of use to the enemy.
Such damages are to be made good to the individual, who should bear
only his quota of the loss. But there are other damages, caused by
inevitable necessity, as for instance, the destruction caused by the
artillery in retaking a town from the enemy. These are merely acci
dents, they are misfortunes, which chance deals out to the proprietors
on whom they happen to fall. The sovereign ought indeed to shew
an equitable regard for the sufferers, if the situation of his affairs
will admit of it: but no action lies against the state for misfortunes
of this nature, — for losses, which she has occasioned, not wilfully, but
through necessity and mere accident, in the exertion of her rights.
The same may be said of damages caused by the enemy. w Vat. b.
iii. ch. xv. sect. 232.
THE RIGHTS OF WAR AND PEACE 389
IX. Some make a distinction between the property which
subjects are entitled to from the law of nations and that
which they possess by the authority of the civil law,
allowing the king a more extensive controul over the
latter, even to the power of taking it without cause or
compensation, which is not the case with property of the
former kind. But this is an improper distinction. For
whatever may be the origin of property, it is always
attended with peculiar effects according to the law of
nature : so that it cannot be taken away for any other
reasons than those inherent in the nature of property
itself, or derived from some act of the owners.
X. The prohibition respecting the property of individ
uals being given up, except for some public advantage,
is a matter resting entirely between a sovereign and his
subjects, and a compensation for losses is an affair be
tween the state and individuals. But in all transactions
between a king and foreigners, the act of the king is
sufficient to give them NATIONAL validity, not only out of
respect to his personal dignity, but according to the law
of nations, which renders the effects of subjects respon
sible for the acts of the sovereign.
XI. In interpreting treaties of peace, favourable cir
cumstances are always to be taken in their utmost lati
tude, and unfavourable circumstances to be limited as
strictly as possible.*
Regarding purely the law of nature, the most favour
able construction is that, whereby every one is restored
to his own property and possessions. Therefore where
the articles of a treaty are ambiguous, the construction
should go so far, as to grant the party, who has evi
dently justice on his side, the object for which he went
to war, and likewise indemnity for the losses which he
has sustained.
But it is not allowable that either party should gain
more than an indemnity, or demand any thing by way of
punishment, which is of an odious nature.
As in making peace, it scarcely ever happens that
either party will acknowledge the injustice of his cause,
or of his claims, such a construction must be given,
as will equalize the pretensions of each side, which
may be accomplished, either by restoring the disputed
possessions to their former situation, or by leaving them
in the state, to which the war has reduced them.
*See b. ii. ch. xv. sect 12.
390 HUGO GROTIUS
XII. Of these two methods, in a doubtful case, the
latter is preferred, as being the more easily adjusted,
and occasioning" no further change. From hence the
right of postliminium belongs to such prisoners, as are
expressly included in the treaty. Neither are deserters
to be given up, unless it be so agreed. For by the laws
of war any power is allowed to receive deserters, and
even to enlist them in his own army.
By such agreement other things remain in the hands
of the possessors, by which is not meant a civil, but a
natural possession: for in war BARE POSSESSION is suffi
cient, nor is any other kind looked for. And lands are
said to be so possessed, when inclosed or defended by
fortifications, for a temporary occupation by an encamp
ment is not regarded in this case. Hence Demosthenes
in his speech for Ctesiphon, says that Philip was anxious
to make himself master of all the places he could seize,
as he knew that upon the conclusion of a peace, he should
retain them.
Incorporeal rights cannot be held but by the occupa
tion of the things with which they are connected; as for
instance, the services of lands, or through means of the
persons, to whom they belong: but the holders of such
rights lose them, when an enemy has become master of
the country.
XIII. In that other mode of treaty, whereby possession,
that has been disturbed in the course of a war, is restored,
it is proper to observe that the last possession, immedi
ately before the war began, is that, which is always meant,
so that the individuals then unjustly ejected, may have
recourse to law, either to obtain possession by a provi
sional decree, or to make good their claim.
XIV. If an independent people VOLUNTARILY and SPON
TANEOUSLY place themselves under the controul and pro
tection of one of the belligerent powers, such a people
cannot be included among those entitled to restitution,
which only belongs to those who have suffered losses by
violence, through fear, or any lawful stratagem of war.
Thus when peace was made among the Grecian states,
the Thebans retained Plataea, observing that they neither
owed their possession of it to violence, nor treachery,
but to the free surrender of those, to whom it belonged.
XV. Unless there is an express stipulation to the con
trary, it is understood that, in all treaties of peace, there
is an implied assent that no actions are to be brought for
THE RIGHTS OF WAR AND PEACE 391
losses occasioned by the accidental calamities of war,
either to states or individuals. For those are natural
consequences of a state of hostilities: and it is supposed
that in doubtful cases, no belligerent would consent to
be convicted of injustice.
XVI. The debts, owing to individuals, at the beginning
of a war, are not to be thought thereby discharged. For
they are not things acquired by the laws of war: for
war only prevents the claim to them from being prose
cuted, but by no means releases the obligation. So that
when the impediment of war is removed, such debts re
tain their original force. For though it ought not to be
presumed that any one should easily be deprived of a
right subsisting before the war, yet this is to be under
stood of the rights arising out of the foundation of prop
erty, whereby a community and equality of goods was
abolished. For states and governments, says Cicero,
were originally and principally designed to preserve to
every one the possession of his own property.
XVII. The right to claim lands or goods of any kind,
by way of PUNISHMENT, is not of equal force with the
above rules. For in transactions and treaties of that
kind between kings and sovereign states, all claims of
that kind seem and indeed ought to be relinquished,
otherwise peace would be no peace, if the old and original
causes of the war were allowed to remain and be revived.
And the most latent and remote causes are supposed to
be included in the most GENERAL TERMS, in treaties of
peace, whereby they are sunk in oblivion.
XVIII. The rights of individuals to penalties are not
supposed to be abandoned, resting entirely upon different
grounds: because they may be decided by legal tribunals
without appealing to the sword. Yet as our rights of
this sort are not of the same kind with those of absolute
property, and as penalties have always something odious
in their nature, any faint verbal conjecture will be
thought a sufficient presumption of their being remitted.
XIX. The objection made against taking away any
rights, that existed before the war, applies chiefly to the
rights of INDIVIDUALS. For where the words of a treaty
supply any probable conjecture, it is most natural to sup
pose that KINGS and NATIONS have more readily relin
quished certain rights, especially in matters, where those
rights are not clearly and fully ascertained. So that,
giving the most favourable construction to their conduct,
392 HUGO GROTIUS
they are supposed to have been animated with the noble
desire of rooting- up and destroying all the seeds of war.
XX. All captures, made after a treaty is finished, must
evidently be restored. For the treaty puts an end to all
the rights of war.
XXI. But in treaties relating to the restoration of
things taken in war, a more extensive interpretation
must be given, where the advantages are mutual than
where they incline only to one side.*
In the next place all the parts of a treaty relating to
persons are to be interpreted more favourably than those
relating to things: and among those relating to things,
priority is given to lands before moveable effects, and
also among these, such as are in the hands of the state
are held in more consideration than the possessions of
individuals. And again, among things in the possession
of individuals, those are more favoured which are held
under a beneficial title, than those which are loaded with
incumbrances, as things held by money payments, or
by dower.
XXII. The person, to whom any thing is ceded by a
treaty of peace, is entitled to the produce and fruits of
it, from the time of such cession, and not farther back:
a point maintained by Augustus Caesar in opposition to
Sextus Pompey, who, upon Peloponnesus being ceded to
him, claimed also the tributes and revenues, that were
due for former years.
XXIII. The names of countries are to be taken accord
ing to the usage of the present time, not so much ac
cording to the popular acceptation, as to that of men of
science, by whom those subjects are generally treated of.
XXIV. These rules also are of frequent use, whenever
there is a reference to an antecedent, or to an ancient
treaty. For in that case the qualities and conditions of
the latter treaty are considered as a repetition of those
expressed in the former. — And the person contracting is
to be considered as having really performed his part of
the engagement, which he certainly would have done,
had he not been prevented by the party with whom he
is engaged in dispute.
* (( Because then the condition of the contracting parties being unequal,
there is great reason to believe, that he, to whose disadvantage the in
equality is, has pretended to engage himself as little as possible: and
it was the other's business who was to have the benefit of it, to have
the thing explained in as clear a manner aspossible.^ — Barbeyrac.
THE RIGHTS OF WAR AND PEACE 393
XXV. What some allege in excuse for a short delay in
the execution of a treaty is not to be admitted as true,
except some unforeseen necessity has occasioned the
impediment. For though some of the canon-laws may
favour such a plea, that is not surprising, considering
they are framed solely with the view of promoting charity
among Christians. But in this question relating to the
interpretation of treaties, it is not so much our business
to lay down what is best and properest for every one to
do, nor even to state what religion and piety require, as
to consider what every one may be compelled by legal
authority to do.
XXVI. In doubtful matters it is usual for an interpre
tation to be given more prejudicial to the party who has
dictated the terms, than to the other, because in general
he is the more powerful: in the same manner, in explain
ing the terms of a bargain, a construction is generally
given against the seller: as he may blame himself for not
having spoken more clearly, and openly. Whereas the
other, comprehending the terms in more meanings than
one, might fairly select that most favourable to himself.
XXVII. It is a matter of frequent dispute what consti
tutes the breach of a peace. For it is not the same
thing to break a peace, as to furnish new grounds and
causes of war. There is a great difference between these
things, both as to the penalty incurred by the aggressor,
and as to the aggrieved party being, in other respects,
released from his engagements.
There are three ways, in which a peace may be broken,
— either by doing something contrary to the very essence
of ALL peace, — or something in violation of the EXPRESS
terms of a PARTICULAR peace, — or something contrary to
the EFFECTS, which are intended to arise from every peace.
XXVIII. A thing is done contrary to the very essence
of all peace, when hostile aggressions are committed
without any new grounds of war. But where any specious
pretext can be assigned for taking arms, it is better it
should be supposed purely an act of injustice, than an
act of injustice accompanied with perfidy. It is hardly
necessary to quote the words of Thucydides, who says,
"it is not the party, who repels force by arms, but the
power who first makes the attack, that violates a peace. )V
Having laid down these rules, it remains to be consid
ered, who are the AGGRESSORS, and who are the AGGRIEVED
PERSONS, in the breaking of a peace.
394 HUGO GROTIUS
XXIX. There are some, who think that a peace is
broken, when even those, who have been allies do any
of these things. Nor indeed can it be denied, that such
an agreement MAY be made, for one ally to become liable
to punishment for the actions of another, and for a
peace to be deemed ratified and permanent only upon
conditions, partly arbitrary, and partly casual.
But it is hardly credible, unless there is the clearest
evidence of it, that peace is ever concluded upon such
terms. For it is contrary to all rule, and repugnant to
the common wishes of those, who make peace. There
fore those, who have committed hostile aggressions, with
out the assistance of others, will be deemed breakers of
the peace, against whom alone the injured party will
have a right to take arms.
XXX. If subjects have committed any act of hostility
without authority and commission from the state, it will
form a proper subject of inquiry, whether the state can
be judged responsible for the acts of individuals: to con
stitute which responsibility, it is evident that a knowl
edge of the fact, power to punish it, and having neglected
to do so, are requisite.
A formal notice given to the sovereign of the offend
ing subjects is supposed to amount to a knowledge of
the fact, and it is presumed that every sovereign is able
to controul and punish his own subjects, unless there be
some defect in his authority: and a lapse of time, beyond
what is usually taken for the punishment of civil offences
in every country, may be construed into wilful neg
lect. And such neglect amounts to a sanction of the
offence.
XXXI. It is likewise frequently made a subject of
inquiry, whether a state is answerable for the conduct of
any of her people, who do not take arms by her authority,
but serve in the armies of some other power engaged in
war. The Cerites, in Livy, clear themselves upon this
principle, that it was not by their authority their people
bore arms. And it is a well-founded opinion that no such
permission ought to be deemed as given, unless it appear
from probable reasons that it was intended it should be
granted : a thing sometimes done, according to the example
of the ancient Aetolians, who thought they had a right
to deprive every plunderer of his spoils. A custom the
force of which Polybius expresses in the following words,
<(when other powers, friends and allies of the Aetolians,
THE RIGHTS OF WAR AND PEACE 395
are at war with each other, the Aetolians may neverthe
less serve in the armies on either side, destroying and
spoiling their respective countries. w
XXXII. Again, a peace ought to be deemed broken,
not only by any act of violence done to the body politic
itself, but to any of the subjects, without new grounds
of war. For peace is made with a view to the security
of every individual subject: as the state in making peace
acts for the whole, and for all its parts.
Indeed even if new grounds of war should arise, every
one may, during the continuance of peace, defend him
self and his property. For it is a natural right to repel
force by force: a right which it cannot easily be sup
posed that those, who are upon a footing of equality have
ever renounced.
But to practise revenge, or use violence in recovering
things taken away will not be lawful, except where jus
tice is denied. Justice may admit of some delay: but
the other method demands prompt execution, and there
fore should not be undertaken but in extreme emergency.
But if the subjects of any country persist in a course of
uniform crime, and aggression, repugnant to all natural
and civil law, in defiance of the authority of their own
government, so that the hand of justice cannot reach
them, it will be lawful for any one to deprive them of
their spoils, and to exercise upon them the same rigour,
as if they were delivered up to punishment. But to at
tack other innocent persons on that account is a direct
violation of peace.
XXXIII. Any act of violence also offered to allies, con
stitutes a breach of the peace, but they must be such
allies as are comprehended in the treaty.
The same rule holds good, even if the allies themselves
have not made the treaty, but others have done so on
their behalf : since it is evident that those allies regarded
the peace as ratified and valid. For they are looked upon
as enemies, till it is certain they have consented to the
ratification.
Other allies, or connections, who are neither subjects
nor named in the treaty of peace, form a distinct class,
to whom any violence done cannot be construed into an
act of breaking the peace. Yet it does not follow
that war may not be undertaken on such an account,
but then it will be a war resting entirely upon new grounds.
XXXIV. A peace is broken by doing any thing con-
396 HUGO GROTIUS
trary to the express terms of it; and by this is likewise
meant the non-performance of engagements.
XXXV. Nor can we admit of any distinction between
articles of greater or minor importance.
For ALL the articles of a treaty are of sufficient mag
nitude to require observance, though Christian charity
may overlook the breach of them upon due acknowledge
ment. But to provide greater security for the continu
ance of a peace, proper clauses will be annexed to the minor
articles, stating that any thing done against them shall not
be deemed an infraction of the treaty: or that mediation
shall be adopted in preference to having recourse to arms.
XXXVI. This seems to have been plainly done in
treaties, where any special penalty was annexed. A
treaty indeed may be made upon terms allowing the in
jured party his option either of enacting the penalty, or
receding from his engagement: but the nature of the
business rather requires the method of mediation. It is
evident and proved from the authority of history, that one
of the parties, who has not fulfilled his engagement,
owing to the neglect of the other to do so, is by no
means guilty of breaking the peace: as his obligation
was only conditional.
XXXVII. If there is any unavoidable necessity to pre
vent one party from fulfilling his engagement, as for in
stance, if a thing has been destroyed, or carried off, by
which the restoration of it has become impossible, a
peace shall not thereby be deemed broken, the continu
ance of it not depending upon CASUAL conditions. But
the other party may have his option, either to prefer
waiting, if there is any reason to hope that the engage
ment may be fulfilled at some future period, or to re
ceive an equivalent, or to be released, on his side from
some corresponding article of the treaty.
XXXVIII. It is honourable, and laudable to maintain
a peace, even after it has been violated by the other
party: as Scipio did, after the many treacherous acts of
the Carthaginians. For no one can release himself from
an obligation by acting contrary to his engagements.
And though it may be further said that the peace is
broken by such an act, yet the breach ought to be taken
in favour of the innocent party, if he thinks proper to
avail himself of it.
XXXIX. Lastly, a peace is broken by the violation of
any special and express clause in the treaty.
THE RIGHTS OF WAR AND PEACE 397
XL. In the same manner, those powers, who commit
unfriendly acts, are guilty of breaking that peace, which
was made solely upon condition of amicable relations
being preserved. For what, in other cases, the duties of
friendship alone would require, must here be performed
by the law of treaty.
And it is to treaties of this kind that many points may
be referred, which are discussed by legal writers, relat
ing to injuries done without force of arms, and to the
offences of insults. According to this principle, Tully
has observed, that any offence committed after a recon
ciliation is not to be imputed to neglect, but to wilful
violation, not to imprudence, but to treachery.
But here it is necessary, if possible, to exclude from the
account every charge of an odious kind. So that an
injury done to a relation or subject of the person,
with whom a treaty of peace has been made, is not
to be deemed the same, as one done to himself, unless
there are evident proofs that, through them, an attack
upon him was intended. And an invasion of another's
rights is often to be ascribed to new motives of ra
pacity, rather than to those of treachery.
Atrocious menaces, without any new grounds of of
fence, are repugnant to all terms of amity. Any one
may assume this threatening posture, by erecting new
fortifications in his territory, as a means of annoyance
rather than offence, by raising an unusual number of
forces: when it is evident that these preparations can
be designed against no one, but the power with whom
he has concluded peace.
XLI. Nor is it contrary to the relations of amity to re
ceive individual subjects, who wish to remove from the
dominions of one power to those of another. For that is
not only a principle of natural liberty, but favourable to
the general intercourse of mankind. On the same grounds
a refuge given to exiles may be justified. But it is not
lawful to receive whole towns, or great bodies, forming
an integral part of the state. Nor is it more allowable
to receive those, who are bound to the service of their
own state by oath or other engagement.
XLVI.* There are two kinds of arbitration, the one of
such a nature that it must be obeyed whether the
* Sections XLII, XLIII, XLIV, & XLV, of the original, relating to
decisions by lot and single combat, are omitted in the translation. —
TRANSLATOR.
398 HUGO GROTIUS
decision be just or unjust, which, Procuius says, is observed
when, after a compromise, recourse is had to arbitration.
The other kind of arbitration is where a matter ought
to be left to the decision of a person, in whose integrity
confidence may be placed, of which Celsus has given us
an example in his answer, where he says, <( though a
freedman has sworn, that he will do all the services,
which his patron may adjudge, the will of the patron ought
not to be ratified, unless his determination be just.*
This interpretation of an oath, though comformable to
the Roman laws, is by no means consistent with the
simplicity of language considered by itself. For the jus
tice of the case remains the same, in whatever way an
arbiter is chosen, whether it be to reconcile contending
parties, a character, in which we find the Athenians act
ing between the Rhodians and Demetrius, or to make an
absolute decree.
Although the civil law may decide upon the conduct
of such arbiters to whom a compromise is referred, so as
to allow of an appeal from their decrees, or of complaints
against their injustice, this can never take place between
kings and nations. For here there is no superior power,
that can either rivet or relax the bonds of an engagement.
The decree therefore of such arbiters must be final and
without appeal.
XL VI I. With respect to the office of an arbiter or
mediator, it is proper to inquire, whether the person has
been appointed in the character of a judge, or with powers
more extensive and discretionary than legal powers.
Aristotle says that (( an equitable and moderate man will
have recourse to arbitration rather than to strict law,
ADDING AS A REASON, because an arbitrator may consider
the equity of the case, whereas a judge is bound by the
letter of the law. Therefore arbitration was introduced
to give equity its due weight. w
Equity does not signify in this place, as it does else
where, that part of justice, which gives a strict interpre
tation of the general expressions of the law, according
to the intention of the law-giver. For that is left to the
judge. But it includes every thing, which it is more proper
to do than to omit, even beyond what is required by the
express rules of justice. — Such kind of arbitration being
common among individuals and subjects of the same
empire, it is recommended by St. Paul as a practice
peculiarly proper for Christians. Yet in doubtful cases
THE RIGHTS OF WAR AND PEACE 399
it ought not to be presumed that such extensive powers
are granted. For where there is any obscurity it abridges
this latitude of decision : and especially in contested mat
ters, between independent sovereigns, who, having no
common judge, are supposed to bind the mediators, and
arbitrators, whom they chuse, by the strictest rules of
law.
XLVIII. It is to be observed that arbitrators chosen
by nations or sovereign princes may decide upon the
matter in dispute, but not confer a possession, which is
a matter that can only be decided by established rules
of civil law, for by the law of nations the right of pos
session follows the right of property. Therefore while
a cause is pending, no innovation ought to be made, both
to prevent partiality and prejudice, and because, after
possession has been given, recovery is difficult. Livy in
his account of some disputed points between the people
of Carthage and Masinissa, says, (< the Ambassadors did
not change the right of possession. w
XLIX. There is another kind of arbitration, which
takes place, when any one makes an absolute surrender
of himself and all his rights to an enemy or foreign
power. But still a distinction ought to be made, even
here, between the bounds of right and wrong, limiting
the submission of the vanquished, on the one hand, and
the authority of the conqueror, on the other, to a certain
degree.
For there are particular duties, which ought to be ob
served in the exercise of EVERY right. Taking the right
of the conqueror in its literal meaning and full extent,
it is true that he is entitled to impose ANY terms upon
the conquered, who is now placed, by the external laws of
war, in a situation to be deprived of every thing, even
personal liberty or life, much more then, of all his prop
erty, either of a public or private kind.
L. The first object of a conqueror should be to avoid
committing any act of injustice, or using any rigour, ex
cept the demerits and atrocity of the enemy require it ; to
take nothing but by way of lawful punishment. Observ
ing these bounds, as far as security allows, it is always
laudable to incline to moderation and clemency. Some
times even circumstances may require such a line of con
duct, and the best conclusion of any war is that, which
reconciles all contending claims by a fair adjustment, and
a general amnesty. The moderation and clemency to
400 HUGO GROTIUS
which the vanquished appeal, are by no means an abolition
but only a mitigation of the conqueror's absolute right.
LI. There are conditional surrenders, reserving to the
individuals, certain personal privileges, and remains of
their property, and to the state, certain parts of its con
stitution.
LII. Hostages and pledges may be considered as an
appendage to treaties. And some of those hostages are a
voluntary surrender, and others given by authority of the
state as a security. For the sovereign has the same power
over the persons and actions of his subjects, as over their
property. But the state or its ruler will be bound to
recompense individuals or their relatives for any incon
veniences they may sustain.
LIIL Though the law of nations may in its literal
rigour allow of putting hostages to death, it can never
conscientiously be enforced, but where they have com
mitted crimes deserving of capital punishment. Neither
can they be made slaves. Indeed the law of nations per
mits them to leave their property to their heirs, although
by the Roman law provision was made for confiscating it
to the state.
LIV. If it should be asked whether hostages may law
fully make their escape : it may be answered in the neg
ative, especially if, at first, or afterwards, they have
pledged their faith to remain, upon condition of being
prisoners at large. But it does not appear that states so
much intended to impose a hardship upon their subjects
by forbidding their escape, as to give the enemy security
for the performance of their engagements.
LV. The obligation of hostages is of an odious nature,
as being unfriendly to personal liberty, and arising from
the act of another. Therefore a strict interpretation
must be given to such engagements, so that hostages de
livered on one account cannot be detained on any other,
nor for any contract, where hostages are not required.
But if in another case there has been any violation of
good faith, or any debt contracted, hostages may be de
tained, not as hostages, but in the capacity of subjects,
whom the law of nations makes liable to be seized and
detained for the acts of their sovereigns. To guard
against which, provision may be made by additional
clauses for the restoration of hostages, whenever the en
gagement for which they were delivered has been ful
filled.
THE RIGHTS OF WAR AND PEACE 401
LVI. Whoever has been delivered as a hostage for
other prisoners, or for the redemption of other hostages,
will naturally be released upon the death of those per
sons. For by death the right of the pledge is extin
guished in the same manner as by the ransom of a
prisoner. And therefore, according to Ulpian, as a PER
SONAL debt is confined to him, who has contracted it, so
one person, being substituted for another, cannot be de
tained any longer than while the obligation of that other
continues.
LVII. The decision, whether hostages can be detained
upon the death of the sovereign, by whom they were de
livered, must depend upon the nature of the engage
ments, which he has made. If they are PERSONAL, they
continue in force only during his natural life, but if they
are what are called REAL or more PERMANENT treaties,
they pass with all their consequences to his successors.
For ACCESSORY articles cannot authorise any devi
ation from the GENERAL rule of interpreting the
fundamental and principal points of a treaty, but the ac
cessory articles themselves ought rather to be explained
in conformity to those general rules.
LVI II. A cursory observation may be made, that
hostages are sometimes considered, not as appendages,
but as forming the principal part of an engagement,
where any one is bound not for himself, but for another,
and, in case of non-performance, being obliged to pay
damages, his hostages or sureties are answerable in his
stead. — There is not only some thing of harshness, but
even injustice in the opinion that hostages may be bound
for the conduct of another even without their own con
sent.
LIX. Pledges have some characteristics in common
with hostages, and some peculiar to themselves. It is a
common characteristic of both to be detained for some
thing else that is due, except where public faith is given, and
provision made to the contrary. Pledges may be detained
with greater latitude than hostages; which is one of
their peculiar characteristics, there being less of odium
in the former case than in the latter: THINGS being of a
nature more proper for detention than PERSONS.
LX. No time can bar the redemption of a pledge,
whenever the engagement for which it was given is ful
filled. For it is never to be presumed that engagements
26
402 HUGO GROTIUS
proceed from new causes, when old and known causes
can be assigned. If a debtor therefore has forborne to
redeem a pledge, we may still suppose that he has not
abandoned his original engagement, unless there be clear
proof to the contrary: as if, for instance, though desirous
of redeeming it, he has been prevented, or suffered a space
of time to elapse unnoticed, that would be requisite to
imply his consent.
CHAPTER XXL
ON FAITH DURING THE CONTINUANCE OF WAR, ON TRUCES,
SAFE-CONDUCTS, AND THE REDEMPTION OF PRISONERS.
Truces of an intermediate denomination between peace and war —
Origin of the word — New declaration of war not necessary after a
truce — Time from whence a truce and all its correspondent obliga
tions and privileges commence — A retreat may be made, or fortifi
cations repaired during a truce — Distinction respecting the occupying
of places — The case of a person prevented from making his retreat,
aud taken in the enemy's territories at the expiration of a truce,
considered — Express terms and consequences of a truce — Breach
of a truce by one party justifies a renewal of war by the other —
Penalty annexed — Truce broken by the acts of individuals — Rights
belonging to safe-conducts without a truce — Persons in a military
capacity how far allowed the benefit of a safe-conduct — Privileges
of goods arising from thence — Attendants of the person protected
by a safe-conduct — Safe-conduct does not expire upon the death of
the grantor — Safe-conduct given to continue during the pleasure of
the grantor — Protection thereof extending beyond his own territory
— Redemption of prisoners favoured, and not to be prohibited
by law.
I. and II. IN THE midst of war there are certain points
generally conceded by the belligerent powers to each
other, which Tacitus and Virgil call the intercourse of
war, and which comprehend truces, safe-conducts, and
the redemption of prisoners. — Truces are conventions,
by which, even during the continuance of war, hostili
ties on each side cease for a time. DURING THE CON
TINUANCE OF WAR; for, as Cicero says, in his eighth
Philippic, between peace and war there is no medium.
By war is meant a state of affairs, which may exist
even while its operations are not continued. Therefore,
as Gellius has said, a peace and a truce are not the
same, for the war still continues, though fighting may
cease. So that any agreement, deemed valid in the
time of war, will be valid also during a truce, unless it
evidently appears that it is not the state of affairs, which
is considered, but the commission of particular acts of
hostility. On the other hand, any thing, agreed to, to be
done, when peace shall be made, cannot take place in
consequence of a truce. There is no uniform and in
variable period fixed for the continuance of a truce, it
(403)
404 HUGO GROTIUS
may be made for any time, even for twenty, or thirty
years, of which there are many instances in ancient his
tory. A truce, though a repose from war, does not
amount to a peace, therefore historians are correct in
saying that a peace has often been refused, when a truce
has been granted.
III. After a truce a new declaration of war is not
necessary.
For upon the removal of a temporary impediment, the
state of warfare revives in full force, which has only been
lulled asleep, but not extinguished. Yet we read in
Livy, that it was the opinion of the heralds' college, that
after the expiration of a truce war ought to be declared.
But the ancient Romans only meant to shew by those
superfluous precautions, how much they loved peace, and
upon what just grounds they were dragged into war.
IV. The time, generally assigned for the continuance
of a truce, is either some uninterrupted period, of a HUN
DRED DAYS, for instance, or a space limited by some arti
ficial boundary of time, as the Calends of March. In the
former case, the calculation is to be made according to
the natural motion of time : whereas all civil computations
depend upon the laws and customs of each country. In
the other case it is generally made a matter of doubt,
whether in naming any particular day, month or year,
for the expiration of a truce, that particular day, month,
or year, are comprehended in the term of the truce, or
excluded from it.
In natural things there are two kinds of boundaries,
one of which forms an inseparable part of the things
themselves, as the skin does of the body, and the other
only adjoins them, as a river adjoins the land, which it
bounds or washes. In either of these ways voluntary
boundaries may be appointed. But it seems more natural
for a boundary to be taken as a part of the thing itself.
Aristotle defines the extremity of anything to be its
boundary: a meaning to which general custom conforms:
— thus if any one has said that a thing is to be done
before the day of his death, the day on which he actu
ally dies is to be taken into the account as forming part
of the term. Spurinna had apprised Caesar of his dan
ger, which could not extend beyond the Ides of March.
Being accosted, respecting the matter, on the very day,
he said, the Ides of March are come, but not passed.
Such an interpretation is the more proper where the pro-
THE RIGHTS OF WAR AND PEACE 405
longation of time is of a favourable nature, as it is in
truces, which are calculated to suspend the effusion of
human blood.
The day, FROM which any measure of time is said to
begin, cannot be taken into the account ; because the word,
FROM, used on that occasion, implies separation and not
conjunction.
V. It is to be observed that truces, and engagements
of that kind immediately bind the contracting parties
themselves from the very moment they are concluded.
But the subjects on either side are only bound from the
time that those engagements have received the form of
a law, for which public notice and the regular promulga
tion are necessary. Upon this being done they immedi
ately derive their authority to bind the subjects. But if
notice thereof has only been given in one place, the
observance of them cannot be enforced through the whole
dominions of the respective sovereigns at one moment,
but sufficient time must be allowed for the due promul
gation of them to be made in every part. Therefore if
in the meantime the subjects on either side have com
mitted an infraction of the truce, they shall be exempt
from punishment, but the contracting parties themselves
shall be obliged to repair the damages.
VI. The very definition of a truce implies what actions
are lawful, and what are unlawful during the continu
ance of it. All acts of hostility are unlawful either
against the persons or goods of an enemy. For every
act of violence during a truce is contrary to the law of
nations. Even things belonging to an enemy, which by
any accident have fallen into our hands, although they
had been ours before, must be restored. Because they
had become theirs by that external right according to
which such things are adjudged. And this is what Paulus
the lawyer says, that during the time of a truce the law
of postliminium cannot exist, because to constitute the
law of postliminium there must be the previous right of
making captures in war, which ceases upon the making
of a truce.
Either party may go to or return from, any particular
place, but without any warlike apparatus or force, that
may prove a means of annoyance, or be attended with
any danger. This is observed by Servius on that pas
sage of Virgil, where the poet says, (( the Latins mingled
with their foes with impunity, w where he relates also that
406 HUGO GROTIUS
upon a truce being made between Porsenna and the Ro
mans during a siege, when the games of the circus were
celebrating, the generals of the enemy entered the city,
contented in the lists, and were many of them crowned
as conquerors.
VII. To withdraw farther into the country with an army,
which we find from Livy that Philip did, is no way con
trary to the intention and principles of a truce: neither
is it any breach of it to repair the walls of a place, or
to raise new forces, unless it has been prohibited by
special agreement.
VIII. To corrupt an enemy's garrisons, in order to
seize upon the places which he holds, is undoubtedly a
breach of the spirit and letter of any truce. For no
such advantage can justly be gained but by the laws of
war. The same rule is to be laid down respecting the
revolt of subjects to an enemy. In the fourth book of
Thucydides, Brasidas received the city of Menda, that
revolted from the Athenians to the Lacedaemonians dur
ing a truce, and excused his conduct upon the plea of the
Athenians having done the same.
Either of the belligerent powers may take possession
of places that have been deserted: if they have been
REALLY deserted by the former owner with the intention
never to occupy them again, but not merely because they
have been left unguarded, either BEFORE, or AFTER, the
making of a truce. For the former owner's right of
dominion therein still remaining renders another's pos
session of them unjust. Which is a complete refutation
of the cavil of Belisarius against the Goths, who seized
upon some places during a truce, under pretext of their
being left without garrisons.
IX. It is made a subject of inquiry, whether any one
being prevented by an unforeseen accident from making
his retreat, and being taken within the enemy's territo
ries, at the expiration of a truce, has a right to return.
Considering the external law of nations, he is undoubtedly
upon the same footing as one, who, having gone into a
foreign country, must, upon the sudden breaking out of
war, be detained there as an enemy till the return of
peace. Nor is there any thing contrary to strict justice
in this; as the goods and persons of enemies are bound
for the debt of the state, and may be seized for pay
ment. Nor has such a one more reason to complain
than innumerable other innocent persons, on whose heads
THE RIGHTS OF WAR AND PEACE 407
the calamities of war have fallen. Nor is there occasion
to refer to the case, which Cicero has alleged, in his
second book ON INVENTION, of a ship of war driven by
the violence of the wind into a port, where by law it was
liable to confiscation. For in the former case the unfore
seen accident must do away all idea of punishment, and
in the latter, the right of confiscation must be suspended
for a time. Yet there can be no doubt but there is
more of generosity and kindness in releasing such a
person than in insisting upon the right of detaining him.
X. The express nature of a convention renders some
things unlawful during a truce, as for instance, if it is
granted only in order to bury the dead, neither party
will have a right to depart from those conditions. Thus
if a siege is suspended by a truce, and nothing more
than such a suspension is thereby granted; the besieged
cannot lawfully avail himself of it, to convey fresh sup
plies of troops and stores into the place. For such con
ventions ought not to prove beneficial to one party, to
the prejudice of the other, who grants them. Some
times it is stipulated that no one shall be allowed to
pass to and fro. Sometimes the prohibition extends to
persons and not to goods. In which case, if any one, in
protecting his goods, hurts an enemy, the act will not
constitute a breach of the truce. For as it is lawful
that either party should defend his property, an acci
dental circumstance cannot be deemed an infringement
of that personal security, which was the principal object
provided for by the truce.
XI. If the faith of a truce is broken by one of the
parties, the other who is thereby injured, will undoubt
edly have a right to renew hostilities without any formal
declaration. For every article in a treaty contains an
implied condition of mutual observance. Indeed we may
find in history instances of those, who have adhered to
a truce till its expiration, notwithstanding a breach on
the other side. But on the other hand there are numer
ous instances of hostilities commenced against those, who
have broken their conventions: a variation, which proves
that it is at the option of the injured party to use or
not to use his right of renewing war upon the breach of
a truce.
XII. It is evident that, if the stipulated penalty is
demanded of the aggressor, and paid by him, the other
party can no longer maintain his right of renewing the
4o8 HUGO GROTIUS
war. For the payment of the penalty restores every thing
to its original footing. And on the other hand, a renewal
of hostilities implies an intention of the injured party to
abandon the penalty, since he has had his option.
XIII. A truce is not broken by the acts of individuals,
unless they are sanctioned by the authority of the sov
ereign, which is generally supposed to be given, where
the delinquents are neither punished nor delivered up,
nor restitution is made of goods taken away.
XIV. The rights belonging to a safe-conduct are a
privilege distinct from the nature of a truce, and our in
terpretation of them must be guided by the rules laid
down respecting privileges.
Such a privilege, to be perfect, must be neither inju
rious to a third person, nor prejudicial to the giver. There
fore in explaining the terms, in which it is couched, a
greater latitude of interpretation may be allowed, espe
cially where the party suing for it receives no benefit,
but rather confers one, and still more so where the ad
vantage, accruing to the individual from thence, redounds
also to the public benefit of the state.
Therefore the literal interpretation, which the words
may bear, ought to be rejected, unless otherwise some
absurdity would follow, or there is every reason to sup
pose that such a literal interpretation is most conforma
ble to the will and intention of the parties concerned.
In the same manner, on the other hand, a greater latitude
of interpretation may be allowed, in order to avoid the
same apprehended absurdity, or to comply more fully
with the most urgent and forcible conjectures respecting
the will of the contracting parties.
XV. Hence we may infer that a safe-conduct, granted
to SOLDIERS, includes not only those of an INTERMEDIATE
RANK, but the HIGHEST COMMANDERS. For that is a
signification strictly and properly authorised by the words
themselves, although they MAY be taken in a more LIMITED
meaning. So the term clergymen includes those of
episcopal as well as those of inferior rank, and by those
serving on board a fleet, we mean not only sailors, but
all persons found there, who have taken the military
oath.
XVI. Where a free passage is granted, liberty to return
is evidently implied, not from the literal force of the ex
pressions themselves, but to avoid the absurdity which
would follow the grant of a privilege, that could never
THE RIGHTS OF WAR AND PEACE 409
be made use of. And by the liberty of coming and going-
is meant a safe passage till the person arrives in a place
of perfect security. From hence the good faith of Alex
ander was impeached, who ordered those to be murdered
on the way, whom he had allowed to depart.
Any one may be allowed to go away without being
allowed to return. But no power can properly refuse
admitting any one, to whom he has granted leave to
come, and on the other hand, his admission implies such
a leave to have been given. GOING AWAY and RETURNING
are indeed very different, nor can any construction of
language give them the same meaning. If there be any
mistake, although it may confer no right, it exempts the
party from all penalties. — A person permitted to come
shall only come ONCE, but not a SECOND TIME, unless the
additional mention of some time may supply room to
think otherwise.
XVII. A son shares the fate of his father, and a wife
of her husband no farther than as to the right of resid
ing, for men reside with their families, but in general
undertake public missions without them. Yet one or two
servants, though not expressly named, are generally
understood to be included in a safe-conduct, especially
where it would be improper for the person to go without
such attendants. For every necessary consequence is
understood to go along with any privilege that is given.
XVIII. In the same manner no other effects are in
cluded in a safe-conduct, but such as are usually taken
on a journe}T.
XIX. The name of attendants, expressed in a safe-
conduct, granted to any one, will not allow him to extend
the protection of it to men of atrocious and criminal
characters, such as pirates, robbers, and deserters. And
the COUNTRY of the attendants being named shews that
the protection cannot extend to those of another nation.
XX. The privileges of a safe-conduct do not, in doubt
ful cases, expire upon the demise of the sovereign who
granted it, according to what was said in a former part
of this treatise on the nature of favours granted by kings
and sovereign princes.
XXI. It has often been a disputed point, what is meant
by the expression used in a safe-conduct, that it shall
continue during the PLEASURE OF THE GRANTOR. But
there seems most reason and truth in the opinion of
those, who maintain that the privilege shall continue, till
410 HUGO GROTIUS
the grantor make some new declaration of his will to the
contrary. Because, in doubtful cases, a favour is pre
sumed to continue, till the right, which it conveys, is
accomplished. But not so, where all possibility of WILL
in the grantor has ceased, which happens by his death.
For upon the death of the person all presumption of his
WILL continuing must cease: as an accident vanishes
when the substance is destroyed.
XXII. The privilege of a safe-conduct protects the per
son, to whom it is given, even beyond the territories of
the grantor: because it is given as a protection against
the rights of war, which are not confined to his terri
tory.
XXIII. The redemption of prisoners is much favoured,
particularly among Christian states, to whom the divine
law peculiarly recommends it as a kind of mercy.
Lactantius calls the redemption of prisoners a great and
splendid office of justice.
CHAPTER XXII.
ON THE FAITH ON THOSE INVESTED WITH SUBORDINATE
POWERS IN WAR.
Commanders — Extent of their engagements in binding the sovereign —
Exceeding their commission — The opposite party bound by such
engagements — Power of commanders in war, or of magistrates with
respect to those under their authority — Generals cannot make peace,
but may conclude a truce — Extent of their authority in granting pro
tection to persons and property — Such engagements to be strictly
interpreted — Interpretation of capitulations accepted by generals —
Precautions necessary till the pleasure of the sovereign be known —
Promise to surrender a town.
I. ULPIAN reckons the agreements, entered into between
the generals of opposite armies during the course of a
war, among public conventions. So that after explaining
the nature of the faith pledged by sovereign powers to
each other, it will be proper to make a short inquiry
into the nature of engagements made by subordinate
authorities; whether those authorities bear a near ap
proach to supreme power, as commanders in chief, or
are removed to a greater distance from it. Caesar makes
the following distinction between them, observing that
the offices of commander and deputy are very different;
the latter being obliged to act according to prescribed
rules, and the former having unqualified discretion in
matters of the highest importance.
II. The engagements of those invested with such
subordinate powers are to be considered in a double
point of view, whether they are binding upon the sover
eign, or only upon themselves. The former of these
points has been already settled in a former part of this
treatise, where it was shewn that a person is bound by
the measures of an agent, whom he has appointed to act
in his name, whether his intentions have been expressly
named, or are only to be gathered from the nature of
the employment. For whoever gives another a commis
sion, gives him along with it every thing in his power
that is necessary to the execution of it. So that there
are two ways, in which persons acting with subordinate
powers may bind their principals by their conduct, and
(4")
4i2 HUGO GROTIUS
that is, by doing- what is probably thought to be con
tained in their commission, or apart from that, by acting
according to special instructions, generally known, at
least to those, with whom they treat.
III. There are other modes too, in which a sovereign
may be bound by the previous act of his minister; but
not in such a manner as to suppose the obligation owes
its EXISTENCE to that action, which only gives occasion
to its fulfilment. And there are two ways, in which this
may happen, either by the consent of the sovereign, or
by the very nature of the thing itself. His consent ap
pears by his ratification of the act, either expressed or
implied, and that is, where a sovereign has known and
suffered a thing to be done, which can be accounted for
upon no other motive but that of approval and consent.
The very nature and obligation of all contracts imply
that one party is not to gain advantage by the loss of
another. Or if advantage is expected from a contract,
the contract must be fulfilled or the advantage abandoned.
And in this sense, and no other, the proverbial expres
sion, that whatever is beneficial is valid, is to be under
stood.
On the other hand a charge of injustice may fairly be
brought against those, who condemn an engagement, yet
retain the advantages, which they could not have had
without it.
IV. It is necessary to repeat an observation made be
fore, that a sovereign, who has given a commission to
another, is bound by the conduct of that person, even
though he may have acted contrary to his secret instruc
tions, provided he has not gone beyond the limits of his
ostensible, and public commission.
This was a principle of equity, which the Roman
Praetor observed in actions brought against employers
for the conduct of their agents or factors. An employer
could not be made answerable for any act or measure of
his factor, but such as was immediately connected with
the business, in which he employed him. Nor could HE
be considered as an appointed agent, with WHOM the
public were apprized, by due notice, to make no contract
-If such notice was given, without having come to the
knowledge of the contracting parties, the employer was
bound by the conduct of the agent. If any one chuses
to make a contract on certain conditions, or through the
intervention of a third person, it is right and necessary
THE RIGHTS OF WAR AND PEACE 413
for that person to observe the particular conditions on
which he is employed.
From hence it follows that kings and nations are more
or less bound by the conventions of their commanders
in proportion as their laws, conditions, and customs, are
more or less known. If the meaning of their intentions
is not evident, conjecture may supply the place of evi
dence, as it is natural to suppose that any one employed
would be invested with full powers sufficient to execute
his commission.
A person acting in a subordinate capacity, if he has ex
ceeded the powers of his commission will be bound to
make reparation, if he cannot fulfil his engagement, un
less he is prevented from doing so by some well known
law.
But if he has been guilty of treachery also, in pre
tending to greater powers than he really possessed, he
will be bound to repair the injury, which he has WIL
FULLY done, and to suffer punishment corresponding with
his offence. For the first of these offences, his property
is answerable, and on failure of that, his personal lib
erty: and in the latter case, his person or property, or
both must be answerable according to the magnitude of
the crime.
V. As a sovereign or his minister is always bound by
every contract, it is certain the other party will also be
bound by the engagement: nor can it be deemed imper
fect. For in this respect there is a comparative equality
between sovereign and subordinate powers.
VI. It is necessary to consider too what are the pow
ers of subordinate authorities over those beneath them.
Nor is there any doubt that a general may bind the
army, and a magistrate, the inhabitants of a place by
those actions, which are usually done by commanders,
or magistrates, otherwise their consent would be neces
sary.
On the other hand, in engagements purely beneficial,
the advantage shall be on the side of the inferior: for
that is a condition comprehended in the very nature of
power. — Where there is any burdensome condition an
nexed it shall not extend beyond the usual limits in
which authority is exercised; or if it does, it shall be at
the option of the inferior to accept or refuse that condition.
VII. As to the causes and consequences of a war, it
is not within the province of a general to decide them.
4H HUGO GROTIUS
For concluding and conducting a war are very different
things, and rest upon distinct kinds of authority.
VIII. and IX. As to granting truces, it is a power
which belongs not only to commanders in chief, but also
to inferior commanders. And they may grant them for
themselves, and the forces immediately under their com
mand, to places which they are besieging or blockading:
but they do not thereby bind other parts of the army.
Generals have no right to cede nations, dominions, or any
kind of conquests made in war. They may relinquish any
thing of which a complete conquest has not been made:
for towns frequently surrender on condition of the in
habitants being spared, and allowed to retain their liberty
and property: cases, in which there is no time for con
sulting the will and pleasure of the sovereign. In the
same manner, and upon the same principle this right is
allowed to subordinate commanders, if it falls within the
nature of their commission.
X. As commanders, in all such engagements, are acting
in the name of others, their resolutions must not be in
terpreted so strictly as to bind their sovereigns to greater
obligations than they intended to incur, nor at the same
time to prove prejudicial to the commanders themselves
for having done their duty.
XI. An absolute surrender implies that the party so
capitulating submits to the pleasure and discretion of the
conqueror.
XII. In ancient conventions a precaution was usually
added, that they would be ratified, if approved of by the
Roman people. So that if no ratification ensued, the
general was bound no further than to be answerable for
any advantage that might have accrued to himself.
XIII. Commanders having promised to surrender a
town, may dismiss the garrison.
CHAPTER XXIV.*
ON TACIT FAITH.
Tacit faith — Example of in desiring to be taken under the protection of
a king or nation — Implied in the demand or grant of a conference —
Allowable for the party seeking it to promote his own interest
thereby provided he uses no treachery — Meaning of mute signs al
lowed by custom.
I. BOTH public, private, and mixed, conventions admit of
tacit consent, which is allowed by custom. For in what
ever manner consent is indicated and accepted it has the
power of conveying a right. And, as it has been fre
quently observed in the course of this treatise, there are
other signs of consent besides words and letters : some of
them indeed naturally rising out of the action itself.
II. An example of such tacit agreement may be found
in the case of a person coming from an enemy, or foreign
country, and surrendering himself to the good faith of
another king or people. For such a one tacitly binds
himself to do nothing injurious or treacherous to that
state, where he seeks protection, a point which is beyond
all doubt.
III. In the same manner, a person who grants or re
quests a conference, gives a tacit promise, that he will do
nothing prejudicial to the parties, who attend it. Livy
pronounces an injury done to an enemy, under the pre
text of holding a conference, a violation of the law of
nations.
IV. But such a tacit promise, to take no advantage of
a parley or conference, is not to be carried farther than
what has been said. Provided all injury and injustice are
avoided, it is reckoned a lawful stratagem, for any one to
avail himself of a parley in order to draw off the enemy's
attention from his military projects, and to promote his
own. The device, by which Asdrubal extricated his army
from the Ausetanian forests, was of this kind, and by the
same means Scipio Africanus, the elder, gained a perfect
*The XXIII Chapter of the Original, on Private Faith in War, is
omitted in the translation. — TRANSLATOR.
C4i5)
416 HUGO GROTIUS
knowledge of Syphax's camp. Both these circumstances
are related by Livy.
V. There are certain mute signs, deriving all their
force and meaning from custom; such as the fillets, and
branches of olive formerly used: among the Macedonians
pikes erected, and among the Romans shields placed upon
the head, were signs of a suppliant surrender obliging
the party to lay down his arms. In the present day a
white flag is a sign of suing for a parley. Therefore all
these methods have the force of express declarations.
CHAPTER XXV.
CONCLUSION.
Admonitions to the observance of good faith — Peace always to be kept
in view in the midst of war — Peace beneficial to the conquered — To
the conqueror — And to be chosen in cases where the issue is doubt
ful — To be religiously observed — Prayer — Conclusion of the work.
I. HERE seems to be the proper place to bring this
work to a conclusion, without in the least presuming
that every thing has been said, which might be said on
the subject: but sufficient has been produced to lay a
foundation, on which another, if he pleases, may raise a
more noble and extensive edifice, an addition and improve
ment that will provoke no jealousy, but rather be en
titled to thanks.
Before entirely dismissing the subject, it may be neces
sary to observe, that, as in laying down the true motives
and causes, that alone will justify war, every possible
precaution at the same time was taken to state the reasons
for which it should be avoided ; so now a few admonitions
will not be deemed superfluous, in order to point out the
means of preserving good faith in war, and maintaining
peace, after war is brought to a termination, and among
other reasons for preserving good faith the desire of
keeping alive the hope of peace, even in the midst of
war, is not the least important. For good faith, in the
language of Cicero, is not only the principal hold by
which all governments are bound together, but is the
key-stone by which the larger society of nations is united.
Destroy this, says Aristotle, and you destroy the inter
course of mankind.
In every other branch of justice there is something of
obscurity, but the bond of faith is clear in itself, and is
used indeed to do away the obscurity of all transactions.
The observance of this is a matter of conscience with
all lawful kings and sovereign princes, and is the basis
of that reputation by which the honour and dignity of
their crowns are maintained with foreign nations.
II. In the very heat of war the greatest security and
expectation of divine support must be in the unabated
27 (417)
418 HUGO GROTIUS
desire, and invariable prospect of peace, as the only end
for which hostilities can be lawfully begun. So that in
the prosecution of war we must never carry the rage of
it so far, as to unlearn the nature and dispositions of
men.
III. These and these alone would be sufficient motives
for the termination of war, and the cultivation of peace.
But apart from all considerations of humanity, the IN
TERESTS of mankind would inevitably lead us to the same
point. In the first place it is dangerous to prolong a
contest with a more powerful enemy. In such a case
some sacrifices should be made for the sake of peace,
as in a storm goods are sometimes thrown overboard to
prevent a greater calamity, and to save the vessel and
the crew.
IV. Even for the stronger party, when flushed with
victory, peace is a safer expedient, than the most exten
sive successes. For there is the boldness of despair to
be apprehended from a vanquished enemy, dangerous as
the bite of a ferocious animal in the pangs of death.
V. If indeed both parties are upon an equal footing, it
is the opinion of Caesar, that it is the most favourable
moment for making peace, when each party has confi
dence in itself.
VI. On whatever terms peace is made, it must be abso
lutely kept. From the sacredness of the faith pledged in
the engagement, and every thing must be cautiously
avoided, not only savouring of treachery, but that may
tend to awaken and inflame animosity. For what Cicero
has said of private friendships may with equal propriety
be applied to public engagements of this kind, which are
all to be religiously and faithfully observed, especially
where war and enmity have ended in peace and recon
ciliation.
VII. And may God, to whom alone it belongs to dispose
the affections and desires of sovereign princes and kings,
inscribe these principles upon their hearts and minds,
that they may always remember that the noblest office,
in which man can be engaged, is the government of
men, who are the principal objects of the divine care.
INDEX
Abandoned property, title to, 107, in.
Acceptance : Necessity of, in promise to
convey a right, 139.
Acceptilation, in.
Accessories to crimes, 197, 257.
Accomplices, punishment of, 256.
Acquisitions : Of property in war, 334 el
seg., 346.
Of dominion, 379.
Actions at law: Stipulations as to, in
treaties, 390.
Admiralty, 146.
Affirmations, 164, 165.
Agency, 339, 412.
Agents : Acts of, binding on principal,
138, 139, 412.
Agreements: Special and exclusive, 101.
Between citizens of different countries,
136.
Alexandrinus, Clemens, 52.
Alienation: Of things by right of war,
353, 389-
Of public dominion, 386.
Alliances : Between states, partnerships,
146.
Unequal, 158. 170.
Allies: Aid to, 173.
Vv'ord construed, 183.
Causes justifying participation of, in
war, 285, 287.
Rewards to, 341.
Ambassadors : Promises of, binding, 139.
Ratification of treaties made by, 167.
Inviolabilitv of, 202, 204.
Must be duly accredited, 202.
Sovereign states may send, 203.
Refusal to receive, 204.
Exemptions, 205, 209, 210, 211, 313.
Punishment of, for crimes, 208.
Passage through foreign states, 209.
Suite and personal effects of, 211.
House of, as asylum, 211.
Debts contracted by, 212.
Ambrose, 54.
Andronicus, 24.
Antoninus, Marcus, 66.
Antoninus, Pius, 112.
Aptitude, 19.
Arbiter, office of, 398.
Arbitration, 84, 276, 397.
Arcifinium, 106.
Aristotle, 19, 20, 22, 24, 61, 62, 64, 76, 118,
120, 190, 218, 251, 268.
Asylum, right of, 260.
Augustine, 58, 74.
Aurelius, Marcus, 52, 68.
Barbeyrac, 173, 392.
Blackstone's Commentaries, 29, 61, 86,
100, 136, 154, 155, 156, 177, 182 — notes.
Bodies politic, privileges of, 262.
Boundary, rivers as, 107.
Breach of peace, 395.
Burial, right of, 213 et scq.
Burke, Edmund, 282 note.
Caduceum, use of, 320.
Caesar, Julius, 59.
Captures in war, 334, 369.
Title to, 335, 336, 338.
Things immovable, 339.
Things movable, 340.
Restoration of, 392.
Cargo, in enemy's ships, title to, 337.
Cassius, 60, 74.
Cato, 59, 77.
Causes of war, justifiable, 85.
Chirographarii, 173.
Chrysostom, Dio, 25.
Cicero, 18, 23, 24, 31, 34, 35, 60, 68, 78, 86, 89,
92, 137, 191, 208, 214, 215, 268, 283, 317,
379-
Civil law : Relation of, to law of naturc>
91-
And interpretation of treaties, 194.
Prizes taken from Pirates, 357.
Right of postliminium under, 357.
Clarigatiou, 319.
Commerce, treaties of, 169, 170.
Commissions : Special, of ambassador,
167.
Variations from, 168.
Common right to actions, 99.
Common right to things, 99.
Community of goods, 86.
Of lands. 88.
Compensation, defined, 582.
Compromise: As method of settling
national disputes, 276.
Conditional surrender, 400.
Conference: To settle disputes of na
tions, 276.
Conqueror, rights of, 399.
Conquest, rights resulting from, 348, 399.
Consent to conventions, 415.
Consideration of contracts, 136, 138.
Constantine, 53, 54.
Contracts: Expressed and implied, 100,
M5-
Between citizens of different countries,
136.
Consideration for, 136, 137.
Of agents, 137.
Exchange, 145, 146.
Revocation of, 145.
Of sale, 146, 151.
Mixed, 147.
Equality in, 148.
lyetting and hiring, 153.
Fraudulent, 199.
Of sovereigns, 387, 413.
Contributions levied for future security,
373-
(419)
420
THE RIGHTS OF WAR AND PEACE
Conventions : Public and private, 166.
Public, division of, 167.
Requiring ratification, 167, 174, 412, 414.
Power to make, in monarchies, 168.
Resting in law of nature, 168.
Of commerce and amity, 169.
Of peace, 170.
Obligations of negotiator, 174.
Truces, 403.
Made by subordinates, 411.
Tacit consent to, 415.
Corporeal rights, 85.
Countries, names of, 392.
Creditors, personal, 173.
Crimes: Principals and accessories, 197,
198, 257.
And misdemeanors, 241.
Damages, 196, 197, 199, 200, 388.
Debts, ^individual, effect of war upon,
391-
Deception, innocent, 302.
Declaration of war, 318, 321.
After truce, not necessary, 404.
Defense : A justifiable cause of war, 35.
Right of, 395.
Demand of restitution, 319.
Demosthenes, 74, 81, 170, 240, 310.
Deserters : Not entitled to right of post-
liminium, 355, 390.
Dictator, sovereign power of, 72.
Dionysius, 61, 74, 98, 163.
Disputes of nations, methods of settle
ment, 276.
Divided and assigned land, 106.
Dominion, acquisition of, 372.
Duration of truces, 404.
Duties : Right to impose, on goods in
transit, 97.
Duty of citizen to prevent war, 286.
Eliminium, 351.
Enemies: Furnishing aid to, 293-321.
Public, 314.
Killing of, 325, 327, 359.
Foreign residents may become, 327.
Property of, right to destroy, 332, 365,
366.
Forbearance toward, 373.
Good faith between, 379.
Engagements, 167.
Of sovereigns or states, 387.
Epictetus, 22.
Equity: A species of justice, 190.
In interpreting treaties, 191.
In matters of arbitration, 398.
Euripides, 22, 78.
Exchange, contracts of, 145.
Extradition, 258, 259.
Factors : Acts of, bind merchants, when.
139, 412.
Faculty, definition of, 19.
Falsehood, discussed, 299 et seq.
Fecial law of Rome, 319.
Federal Union, 62, 121.
Fera; naturee, 86.
Rights of sovereign as to, 91.
Fishing, a common right, 101.
Florentinus, 19, 35.
Foreign residents, rights of, 98, 327.
Free passage through countries, right of,
95, 97-
Permission first asked, 96.
Funeral rites, 214.
Galen, 33, 62.
Good faith, foundation of all treaties,
385, 4i7.
Goods in enemy's ships, title to, 337.
Government: Change of form of, effect
upon debts, 121.
EtTects on treaties, 185.
Mixed, 349.
Governments, established for what, 68.
Gregory of Tours, 69.
Guaranty of performance by another, 143.
Heraclitus, 24.
Hermogenianus, 36.
Herodotus, 66, 68.
Hesiod, 23, 24, 68.
Hiring, 153.
Homicide, excusable, 29,
Hostages : Right to kill, 330, 364.
Appendages to treaties, 400.
Immunity of Ambassadors, 202.
Incorporeal rights, 85, 309, 346.
Of a state lost by conquest, 349.
Indemnity: A justifiable cause for war,
75-
Injunctions, 170.
Injuries to property: Robbery, 81.
Redress for, 311.
Amounting to breach of peace, 397.
Insurance, contract of, 156, 157.
Interest, lawfulness of, 154, 156.
Interpretation: Of laws, 136.
Of promises, 137.
Of treaties, 176 et seq.
Words, taken in common acceptation,
177.
Words of art, 177, 181.
Obscure words, 178.
Probable consequences, 179.
Context, 179.
Motive, 180.
Allies, construed, 183.
Absurd conditions, 188.
And law of nations, 194.
Of peace, 389, 392, 401.
Names of countries, 392.
Josephus, 35, 50.
Justifiable causes of war, 73, 75, 85, 247.
285.
Justinian, 58.
Kings, accountability of, 69.
Not all made by the people, 67.
I^actantius, 23, 74.
I^akes, when property, 90.
lyands : Three-fold division of, 106.
When considered as taken possession
of, in war, 336, 339.
Postliminium rights of, 355.
Waste, 90, 91.
lyaw : Basis of, 136.
Fecial, of Rome, 319.
lawful war, 18, 31, 278, 324.
I,aw of Nations, 23.
How proved, 25, 101.
Voluntary, 158.
And interpretation of treaties, 194.
Use of term, 296.
Positive, 297.
Right to destroy property of enemy
under, 332.
Respecting captures in war, 334, 336,
338.
INDEX
421
Law of nature, 22, 79,
Relation to civil law, 91.
Civil customs not part of, 248.
Ignorance of, excusable, 248.
As to things captured in war, 334.
Laws • Interpretation of, 136.
Power to repeal, 238.
Betters of marque and reprisal, 278, 311.
getting and hiring, 153.
Lie, what is a, 299.
Livy, 64, 73, 78, 114, 167, 170, 206, 317, 332.
Losses of individuals in war, 388.
Lot, as method of settling national dis
putes, 277.
Marque and reprisal, letters of, 278,
3TI-
Mediation, 84.
Mediator, office of, 398.
Money, variations in value, 153.
Monopoly, 101, 152.
Moral distinctions, as to acts 274 et seq.
Mosaic Law, 26-28.
Not binding upon Christians, 29.
Mutius, Quintius, 36.
Nations, law of, 23.
Voluntary, 158.
Union of, rights continue, 121.
Restoration of conquered, 354, 355,
390.
Natural Right, 21.
Nature, law of, unalterable, 22.
Proof of existence of, 24.
Naval associations: Apportionment of
losses, 158.
Necessity, appropriation of property un
der, 92, 93.
Negotiation of treaties, true basis for, 385-
Neutral soil: Right of belligerent to, 93.
Captures on, 344.
Goods, 337.
Neutrals, rights and duties, 377.
Oaths : Sanctity of, 160 et seq.
Meaning of, 161.
Validity and form of, 162.
Effect and substance of, 163, 381.
Authority of sovereign over, 164.
Obligations' Arising from property, 123.
Imperfect, 134.
Resulting from injury, 195.
Enforcing performance of, 287.
Promises, 131, 135.
Occupancy, title by, 90.
Occupatory lands, 106.
Offenses against society, punishment of,
258.
Origen, 49.
Ovid, 32.
Pardons, lawfulness of, 236, 238.
Parley, sign of, 416.
Partnerships, 146.
Trading — proportion of profits and
losses, 157.
Paulus, 21.
Peace : The object of wars, 379.
Treaties of, 385.
Who may make, 386.
Interpretation of, 389.
Breach of, 393.
Preservation of, 417.
Penal statutes, construction of, 181.
Penalties: Remitted, 391.
Special, 396.
Payment of, effect on wars, 408.
Performance of contract, guaranty for,
H3-
Piracy, sovereign answerable for, 200.
Pirates, treatment of, 380.
Plato, 75, 93, 224, 226, 229.
Pledges : Appendages to treaties, 400.
Redemption of, 401.
Pliny, 36, 254.
Plutarch, 23, 24, 66, 93, 221, 226, 227, 235.
Polybius, 23, 73, 208.
Pomponius, 159.
Ponds, when property, 90.
Porphyry, 24.
Possession: Uninterrupted, transfers
property, 114.
Of property, at conclusion of war, 390.
Right of, 399.
Posthumous rights to property, 114.
Postliminium : Definition of, 169, 351.
Right of, 314, 336, 351, 354, 390, 405.
Horses, mules, and ships under law of,
352, 4°5-
Deserters, 355, 390.
Lands, 355.
Movable property, 356.
Things useful in war, 356.
Premium of insurance, 156.
Prescription, law of, as applied to a sov
ereign, 115.
Price, governed by demand, 151.
Prisoners: Surrender of, 258, 259.
Killing of, 328, 363.
As slaves, 345.
Ransom of, 347, 410.
Right of postliminium, 352, 390.
Rights of, on release, 353.
Right of making, 357.
Privateers, 200.
Private right, 20.
Privileges of bodies politic, 262.
Prizes : By right of war, 337, 343, 346.
Taken from pirates, 357.
Prohibitions in treaties, 193.
Promises : Obligation of, 131, 135, 379, 381-
Perfect, 135, 194.
Interpretation of, 137.
Obtained by fraud or fear, 137.
Erroneous, 137, 142.
Valid, 138.
Of ambassadors, 139.
Revocation of, 140.
Acceptance of, 139, 141, 415.
With conditions, 142.
Property : Means of acquiring, 103.
Obligations arising from possession of,
i23<?/ seq.
Alienated by rights of war, 353, 389.
Restoration of, taken in unjust war,
375- .
Possession of, for long time may not
give right of, 109, — but see 114.
Redress of injuries to, 311, 318.
Of enemy, right to destroy, 332, 365, 366.
Title to, 335, 90.
Possession of, after war, 390.
Appropriation of, on ground of neces
sity, 91, 92.
Of subjects, liability of for debts of
states, 308, 370, 387.
Title to, as between enemies, 338.
Use of, 94.
Acquisition of, in war, 340.
Captured, 369.
Idea of how established, 89.
When right of, ceases to exist, 117.
Movable and immovable, 83, 356.
Things not reducible to, 89.
In lakes, ponds, and rivers, 90.
Abandoned, 107, in.
422
THE RIGHTS OF WAR AND PEACE
Puffendorf, 193.
Punishment : A justifiable cause of war,
75-
Defined, 221.
Who may inflict, 223, 226, 228.
Object of, 224, 226, 229, 232, 240, 247, 370.
Under the Gospel, 230.
Capital, 233.
Wicked acts not subject to, 235.
Proportioned to offense, 243 et seq,
Of offenses against God, 249 et seq.
Communication of, upon accomplices,
256.
Offenses affecting society, 258.
Of non-participants, 262.
Of surety, 264.
Of children for parents' sins, 266.
Classes exempt from, 362.
Of hostages, 364.
Right to claim property as, 391.
Quintilian, 24, 89.
Ratification of treaties and conventions,
167, 175, 4*4-
Recovery of things alienated by rights
of war, 353.
Redemption of pledges, 401.
Redress, method of obtaining, 311, 318.
Religion, based on four truths, 250.
Remedial statutes, construction of, 181.
Reprisal : Betters of Marque and, 278.
A method of obtaining redress, 311, 312,
327, 3?o.
Residents, foreign, rights of, 97.
Restoration: Of subjugated people, 354,
355-
Of property, 375, 392.
Right : To movables by occupancy, 104.
To impose duties on goods in transit,
97-
Common-passage through countries,
95, 97, 99-
Of burial, 213.
Violation of, 301.
Of dominion, acquisition of, 379.
Of governors and governed, 19
Of prisoners, 353.
Definition and signification of, 18, 19, 20.
To actions, 99.
Private, 20.
Superior, 20.
Of asylum, 260.
Voluntary, 25.
Of making war, 386.
Of possession, 399.
Rights : Human and Divine, 25.
Sources of, 195.
Disputed, methods of settling, 276.
Of property, 307.
Of persons, 19, 307, 391.
Resulting from conquest, 348.
Arising out of law of nations, 219.
Real, 19.
Of war, 18, 332, 336, 381.
Corporeal and incorporeal, 85, 309, 346-
Of temporary residents, 98.
Of native, 92.
River: Effect of change in course of, 106.
Middle of boundary between territo
ries, 107.
"When property, 90, 104.
Robbery, right to kill robber, 81.
Romanus, Clemens, 52.
Sacred things not exempt from destruc
tion by enemy, 332.
Safe conduct, a, 408.
Expiration of, 409.
Sales and purchases: Right of restrict
ing, 100.
When contract complete, 151.
Sallust, 206.
Salvian, 51.
Sea : Open, not. property, 90.
Portions of, may become property, 104.
Self-defense, 77.
Seneca, 19, 24, 74, 75, 80, 92, 108, 118, 135,
192.
Services, gratuitous, 144.
Settlement of national disputes, methods
of, 276.
Sh. ps . Owners bound by acts of masters
of, when, 139.
Goods found in enemy's, 337.
Under law of postliminium, 352.
Silanian, Decree, 53.
Slavery, 345.
Slaves : Prisoners of war, 345.
Right of postliminium, 352.
Smith, Adam, 101 n.
Soldiers, compensation to, 341, 343.
Sovereign power : Not in the people in
every case, 63 et seq., 120.
Ceases, when, 117.
To declare war, 316, 386.
Sovereigns: Elective and hereditary, 71.
Responsibility for piracy and robbery,
200.
For acts of subjects, 257.
Bound by acts of commissioner, 412.
Sovereignty : Its nature and where it re
sides, 60, 62, 70, 71, 103.
Not f orfeitable by act of delinquency,
80.
Spies, treatment of, when captured, 331.
Sponsio, 167.
State : Definition of, 25.
Sovereign, 62.
Conquered, privileges allowed to, 374.
Division of, into constituent parts, by
consent of war, 121.
States: When immortal, 117.
May lose political existence by con'
quest, 348, 349.
States General : Three divisions of, 70, 71.
Power of, 71.
Of Holland, 337.
Statutes : Penal construed strictly; reme
dial liberally, 181.
Strabo, 62, 98.
Stratagem, use of, in war, 294 et seq.
Subjects: Of sovereign, detention of, 311,
Liability to attack, in time of war, any-1
where, 327.
Superior right, 20.
Supply of a thing affects its price, 151.
Surety : Punishment of, 264.
Bound by consent, 308.
Surrender : Of a people, in war, 390.
Conditional, 400.
Sylla, L,ucius Cornelius, 57.
Tacitus, 64, 68, 87, 106, no, 213.
Taxes on goods in transit, 97.
Terminus, rites of, 373.
Territory long possessed, title to, no.
Tertullian, 49, 51, 52.
Thucydides, 60, 174.
Time : As an element of right of prop
erty, 109.
Immemorial, 113.
Transit, goods in, 97.
INDEX
423
Treaties : Public and private, 166.
Equal, 170.
Unequal, 158, 170, 171, 184.
Definition of, 167.
Requiring ratification, 167.
Power to make in monarchies, 168.
Resting in law of nature, 168.
Of commerce and amity, 169, 170, 185.
Of peace, 170, 386, 389, 391.
Renewal of, 173.
Effect of violation of, 174.
Interpretation of, 176 et seq. (See In
terpretation of Treaties.)
Personal and real, 184.
Where governments change form, 184,
185.
Of peace, material part of, 386.
Stipulations as to actions at law, 390.
Hostages and pledges under, 400.
Truces : Definition, 403.
Duration of, 404,
Public notice of, 405.
Breach of, 406,
Granting of, 414
Ulpian, 21, 34, 36, 129, 162, 166, 263, 333.
Unlawful acts, 305.
Usucaption, law of, as applied to sover
eigns, 115.
Usufruct, 155.
Usufructuary property, 86.
Usury, 155.
Valentinian, 67.
Value of a thing governed by what ? 150.
Of money, 153.
Vasquez, 80, 239, 286, 388.
Vattel, 101, 158, 167, 169, 177, 203, 297, 387,
388 — notes.
War: Definition of, 18, 403.
Derivation of word, 18.
Division of, public, private, and mixed,
55-
All, not repugnant to law of nature,
34. 36-
Private, 55, 56, 83.
Justifiable causes, pretexts, and begin
ning of, 73, 75, 247, 285.
Defense, indemnity and punishment,
75, 245-
Time of beginning, 284.
Object of, 379.
Effect upon debts, 391.
Lawfulness of, 18, 31, 278, 324.
Under divine voluntary law, 36, 40.
Aid to parties to, 173.
Causes, justifying participation of al
lies, 285.
Lawful means used in, 290, 363.
Use of stratagem, 294.
Suspicion of hostile intentions, 83.
Injury to property, 85.
Demand of surrender of citizen, 285.
Precautions against, 280 et seq.
Right of belligerents to neutral soil, 93.
Unjust, causes of, 267 et seq.
Avoidance of, 280 et seq., 418.
Declaration of, 318, 321, 404, and forms,
3I9-
Right to make, 386.
Losses of individuals by, 388.
Public, formal and informal, declared
by sovereign, 57, 316, 317, 386.
Right to avert, and to punish wrongs,
83, 200, 247, 280.
a Wealth of Nations,* 101 n.
Withernam, 311.
Wrongs : Division of, private and public,
61.
Sovereign power may avert and punish,
Xenophon, 32, 93.
BINDING SZ:!T. AUG20 19W5
JA •JrrotiuR , Hugo
20' 3 The rights of vsr a
£5 peace
1. PI
cop. 2
PLEASE DO NOT REMOVE
CARDS OR SLIPS FROM THIS POCKET
UNIVERSITY OF TORONTO LIBRARY